[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          40


          Parts 87 to 99

          Revised as of July 1, 2008


          Protection of Environment
          



________________________

          Containing a codification of documents of generalapplicability 
          and future effect

          As of July 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 40:
          Chapter I--Environmental Protection Agency 
          (Continued)                                                3
  Finding Aids:
      Material Approved for Incorporation by Reference........    1045
      Table of CFR Titles and Chapters........................    1049
      Alphabetical List of Agencies Appearing in the CFR......    1069
      List of CFR Sections Affected...........................    1079

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and sectionnumber. 
                       Thus, 40 CFR 87.1 refers 
                       to title 40, part 87, 
                       section1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of thegeneral and 
permanent rules published in the Federal Register by theExecutive 
departments and agencies of the Federal Government. The Codeis divided 
into 50 titles which represent broad areas subject toFederal regulation. 
Each title is divided into chapters which usuallybear the name of the 
issuing agency. Each chapter is furthersubdivided into parts covering 
specific regulatory areas.
    Each volume of the Code is revised at least once each calendaryear 
and issued on a quarterly basis approximately as follows:

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

    The appropriate revision date is printed on the cover of eachvolume.

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code ofFederal Regulations is kept up to date by the individual 
issues of theFederal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since 
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daily Federal Register. These twolists will identify the Federal 
Register page number of the latestamendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Codecontains amendments published in the Federal 
Register since the lastrevision of that volume of the Code. Source 
citations for theregulations are referred to by volume number and page 
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datecertain for expiration, an appropriate note will be inserted 
followingthe text.

OMB CONTROL NUMBERS

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

[[Page vi]]

Manyagencies have begun publishing numerous OMB control numbers 
asamendments to existing regulations in the CFR. These OMB numbers 
areplaced as close as possible to the applicable recordkeeping 
orreporting requirements.

OBSOLETE PROVISIONS

    Provisions that become obsoletebefore the revision date stated on 
the cover of each volume are notcarried. Code users may find the text of 
provisions in effect on agiven date in the past by using the appropriate 
numerical list ofsections affected. For the period before January 1, 
1986, consulteither the List of CFR Sections Affected, 1949-1963,1964-
1972, or 1973-1985, published in seven separatevolumes. For the period 
beginning January 1, 1986, a ``List ofCFR Sections Affected'' is 
published at the end of each CFRvolume.

INCORPORATION BY REFERENCE

    What is incorporation byreference? Incorporation by reference was 
established by statuteand allows Federal agencies to meet the 
requirement to publishregulations in the Federal Register by referring 
to materials alreadypublished elsewhere. For an incorporation to be 
valid, the Director ofthe Federal Register must approve it. The legal 
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if itwere published in full in the Federal Register (5 U.S.C. 552(a)). 
Thismaterial, like any other properly issued regulation, has the force 
oflaw.
    What is a proper incorporation by reference? The Director ofthe 
Federal Register will approve an incorporation by reference onlywhen the 
requirements of 1 CFR part 51 are met. Some of the elementson which 
approval is based are:
    (a) The incorporation will substantially reduce the volume 
ofmaterial published in the Federal Register.
    (b) The matter incorporated is in fact available to the 
extentnecessary to afford fairness and uniformity in the 
administrativeprocess.
    (c) The incorporating document is drafted and submitted 
forpublication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume 
arelisted in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot befound? If 
you have any problem locating or obtaining a copy ofmaterial listed in 
the Finding Aids of this volume as an approvedincorporation by 
reference, please contact the agency that issued theregulation 
containing that incorporation. If, after contacting theagency, you find 
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20408, or call 202-741-6010.

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index is based on a consolidation of the ``Contents''entries in the 
daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyedto 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

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INQUIRIES

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2008.







[[Page ix]]



                               THIS TITLE

    Title 40--Protection of Environment is composed ofthirty-one 
volumes. The parts in these volumes are arranged in thefollowing order: 
parts 1-49, parts 50-51, part 52(52.01-52.1018), part 52 (52.1019-End), 
parts53-59, part 60 (60.1-End), part 60 (Appendices), parts61-62, part 
63 (63.1-63.599), part 63(63.600-63.1199), part 63 (63.1200-63.1439), 
part 63(63.1440-63.6175), part 63 (63.6580-63.8830), part 63(63.8980-
End) parts 64-71, parts 72-80, parts81-84, part 85-Sec.  86.599-99, part 
86(86.600-1-End), parts 87-99, parts100-135, parts 136-149, parts 150-
189, parts190-259, parts 260-265, parts 266-299, parts300-399, parts 
400-424, parts 425-699, parts700-789, and part 790 to End. The contents 
of these volumesrepresent all current regulations codified under this 
title of the CFRas of July 1, 2008.

    Chapter I--Environmental Protection Agency appears inall thirty-one 
volumes. Regulations issued by the Council onEnvironmental Quality, 
including an Index to Parts 1500 through 1508,appear in the volume 
containing part 790 to End. The OMB controlnumbers for title 40 appear 
in Sec.  9.1 of this chapter.

    For this volume, Susannah C. Hurley and Moja N. Mwaniki wereChief 
Editors. The Code of Federal Regulations publication program isunder the 
direction of Michael L. White, assisted by Ann Worley.


[[Page 1]]



                   TITLE 40--PROTECTION OF ENVIRONMENT




                   (This book contains parts 87 to 99)

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

chapter i--Environmental Protection Agency(Continued).......          87

[[Page 3]]



         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)




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


  Editorial Note: Nomenclature changes to chapter Iappear at 65 FR 
47324, 47325, Aug. 2, 2000; 66 FR 34375, 34376, June28, 2001; and 69 FR 
18803, Apr. 9, 2004.

                 SUBCHAPTER C--AIR PROGRAMS (CONTINUED)
Part                                                                Page
87              Control of air pollution from aircraft and 
                    aircraft engines........................           5
88              Clean-fuel vehicles.........................          12
89              Control of emissions from new and in-use 
                    nonroad compression-ignition engines....          38
90              Control of emissions from nonroad spark-
                    ignition engines at orbelow 19 kilowatts         171
91              Control of emissions from marine spark-
                    ignition engines........................         298
92              Control of air pollution from locomotives 
                    and locomotive engines..................         405
93              Determining conformity of Federal actions to 
                    State or Federalimplementation plans....         552
94              Control of air pollution from marine 
                    compression-ignition engines............         601
95              Mandatory patent licenses...................         686
96               NOX Budget Trading Program and 
                    Cair NOXand SO2 
                    Trading Programs for State 
                    Implementation Plans....................         688
97              Federal NOX Budget Trading 
                    Program and CAIRNOX and 
                    SO2 Trading Programs.........         853
98-99

[Reserved]

[[Page 5]]



                  SUBCHAPTER C_AIR PROGRAMS (CONTINUED)





PART 87_CONTROL OF AIR POLLUTION FROMAIRCRAFT AND AIRCRAFT ENGINES--Table of Contents




                      Subpart A_General Provisions

Sec.
87.1 Definitions.
87.2 Abbreviations.
87.3 General requirements.
87.4 [Reserved]
87.5 Special test procedures.
87.6 Aircraft safety.
87.7 Exemptions.
87.8 Incorporation by reference.

  Subpart B_Engine Fuel Venting Emissions (New and In-UseAircraft Gas 
                            Turbine Engines)

87.10 Applicability.
87.11 Standard for fuel venting emissions.

      Subpart C_Exhaust Emissions (New Aircraft Gas TurbineEngines)

87.20 Applicability.
87.21 Standards for exhaust emissions.

    Subpart D_Exhaust Emissions (In-Use Aircraft Gas TurbineEngines)

87.30 Applicability.
87.31 Standards for exhaust emissions.

Subparts E-F [Reserved]

Subpart G_Test Procedures for Engine Exhaust GaseousEmissions (Aircraft 
                    and Aircraft Gas Turbine Engines)

87.60 Introduction.
87.61 Turbine fuel specifications.
87.62 Test procedure (propulsion engines).
87.63 [Reserved]
87.64 Sampling and analytical procedures for measuringgaseous exhaust 
          emissions.
87.65-87.70 [Reserved]
87.71 Compliance with gaseous emission standards.

   Subpart H_Test Procedures for Engine Smoke Emissions(Aircraft Gas 
                            Turbine Engines)

87.80 Introduction.
87.81 Fuel specifications.
87.82 Sampling and analytical procedures for measuring smokeexhaust 
          emissions.
87.83-87.88 [Reserved]
87.89 Compliance with smoke emission standards.

    Authority: Secs. 231, 301(a), Clean Air Act, as amended(42 U.S.C. 
7571, 7601(a)), unless otherwise noted.

    Source: 47 FR 58470, Dec. 30, 1982, unless otherwisenoted.



                      Subpart A_General Provisions



Sec. 87.1  Definitions.

    (a) As used in this part, all terms not defined herein shall havethe 
meaning given them in the Act:
    Act means the Clean Air Act, as amended (42 U.S.C. 7401et seq.).
    Administrator means the Administrator of the EnvironmentalProtection 
Agency and any other officer or employee of theEnvironmental Protection 
Agency to whom authority involved may bedelegated.
    Aircraft means any airplane for which a U.S. standardairworthiness 
certificate or equivalent foreign airworthinesscertificate is issued.
    Aircraft engine means a propulsion engine which is installedin or 
which is manufactured for installation in an aircraft.
    Aircraft gas turbine engine means a turboprop, turbofan, orturbojet 
aircraft engine.
    Class TP means all aircraft turboprop engines.
    Class TF means all turbofan or turbojet aircraft engines oraircraft 
engines designed for applications that otherwise would havebeen 
fulfilled by turbojet and turbofan engines except engines ofclass T3, 
T8, and TSS.
    Class T3 means all aircraft gas turbine engines of the JT3Dmodel 
family.
    Class T8 means all aircraft gas turbine engines of the JT8Dmodel 
family.
    Class TSS means all aircraft gas turbine engines employedfor 
propulsion of aircraft designed to operate at supersonic flightspeeds.
    Commercial aircraft engine means any aircraft engine used orintended 
for use by an ``air carrier,'' (including thoseengaged in ``intrastate 
air transportation'') or a``commercial operator'' (including those 
engaged in``intrastate

[[Page 6]]

air transportation'') as these terms aredefined in the Federal Aviation 
Act and the Federal AviationRegulations.
    Commercial aircraft gas turbine engine means a turboprop,turbofan, 
or turbojet commercial aircraft engine.
    Emission measurement system means all of the equipmentnecessary to 
transport and measure the level of emissions. Thisincludes the sample 
system and the instrumentation system.
    Engine Model means all commercial aircraft turbine engineswhich are 
of the same general series, displacement, and designcharacteristics and 
are usually approved under the same typecertificate.
    Exhaust emissions means substances emitted to the atmospherefrom the 
exhaust discharge nozzle of an aircraft or aircraft engine.
    Fuel venting emissions means raw fuel, exclusive ofhydrocarbons in 
the exhaust emissions, discharged from aircraft gasturbine engines 
during all normal ground and flight operations.
    In-use aircraft gas turbine engine means an aircraft gasturbine 
engine which is in service.
    New aircraft turbine engine means an aircraft gas turbineengine 
which has never been in service.
    Power setting means the power or thrust output of an enginein terms 
of kilonewtons thrust for turbojet and turbofan engines andshaft power 
in terms of kilowatts for turboprop engines.
    Rated output (rO) means the maximum power/thrust availablefor 
takeoff at standard day conditions as approved for the engine bythe 
Federal Aviation Administration, including reheat contributionwhere 
applicable, but excluding any contribution due to waterinjection.
    Rated pressure ratio (rPR) means the ratio between thecombustor 
inlet pressure and the engine inlet pressure achieved by anengine 
operating at rated output.
    Sample system means the system which provides for thetransportation 
of the gaseous emission sample from the sample probe tothe inlet of the 
instrumentation system.
    Secretary means the Secretary of Transportation and anyother officer 
or employee of the Department of Transportation to whomthe authority 
involved may be delegated.
    Shaft power means only the measured shaft power output of aturboprop 
engine.
    Smoke means the matter in exhaust emissions which obscuresthe 
transmission of light.
    Smoke number (SN) means the dimensionless term quantifyingsmoke 
emissions.
    Standard day conditions means standard ambient conditions 
asdescribed in the United States Standard Atmosphere, 1976, 
(i.e.,Temperature =15 [deg]C, specific humidity =0.00 kg/ 
H2O/kg dry air, and pressure =101325 Pa.)
    Taxi/idle (in) means those aircraft operations involvingtaxi and 
idle between the time of landing roll-out and final shutdownof all 
propulsion engines.
    Taxi/idle (out) means those aircraft operations involvingtaxi and 
idle between the time of initial starting of the propulsionengine(s) 
used for the taxi and turn on to duty runway.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug.9, 1984; 62 
FR 25365, May 8, 1997]



Sec. 87.2  Abbreviations.

    The abbreviations used in this part have the following meanings 
inboth upper and lower case:

CO Carbon Monoxide
FAA Federal Aviation Administration, Department ofTransportation
HC Hydrocarbon(s)
hr. Hour(s)
LTO Landing takeoff
min. Minute(s)
NOX Oxides of nitrogen
rO Rated output
rPR Rated pressure ratio
sec. Seconds
SP Shaft power
SN Smoke number
T Temperature, degrees Kelvin
TIM Time in mode
W Watt(s)
[deg] Degree
% Percent

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug.9, 1984; 62 
FR 25365, May 8, 1997]

[[Page 7]]



Sec. 87.3  General requirements.

    (a) This part provides for the approval or acceptance by 
theAdministrator or the Secretary of testing and sampling 
methods,analytical, techniques, and related equipment not identical to 
thosespecified in this part. Before either approves or accepts any 
suchalternate, equivalent, or otherwise nonidentical procedures 
orequipment, the Administrator or the Secretary shall consult with 
theother in determining whether or not the action requires 
rulemakingunder sections 231 and 232 of the Clean Air Act, as 
amended,consistent with the Administrator's and the 
Secretary'sresponsibilities under sections 231 and 232 of the Act. (42 
U.S.C.7571, 7572).
    (b) Under section 232 of the Act, the Secretary issues regulationsto 
insure compliance with this part.
    (c) With respect to aircraft of foreign registry, theseregulations 
shall apply in a manner consistent with any obligationassumed by the 
United States in any treaty, convention or agreementbetween the United 
States and any foreign country or foreigncountries.



Sec. 87.4  [Reserved]



Sec. 87.5  Special test procedures.

    The Administrator or the Secretary may, upon written applicationby a 
manufacturer or operator of aircraft or aircraft engines, approvetest 
procedures for any aircraft or aircraft engine that is notsusceptible to 
satisfactory testing by the procedures set forthherein. Prior to taking 
action on any such application, theAdministrator or the Secretary shall 
consult with the other.



Sec. 87.6  Aircraft safety.

    The provisions of this part will be revised if at any time 
theSecretary determines that an emission standard cannot be met 
withinthe specified time without creating a safety hazard.



Sec. 87.7  Exemptions.

    (a) Exemptions based on flights for short durations atinfrequent 
intervals. The emission standards of this part do notapply to engines 
which power aircraft operated in the United Statesfor short durations at 
infrequent intervals. Such operations arelimited to:
    (1) Flights of an aircraft for the purpose of export to a 
foreigncountry, including any flights essential to demonstrate the 
integrityof an aircraft prior to its flight to a point outside the 
UnitedStates.
    (2) Flights to a base where repairs, alterations or maintenanceare 
to be performed, or to a point of storage, and flights for thepurpose of 
returning an aircraft to service.
    (3) Official visits by representatives of foreign governments.
    (4) Other flights the Secretary determines, after consultationwith 
the Administrator, to be for short durations at infrequentintervals. A 
request for such a determination shall be made before theflight takes 
place.
    (b) Exemptions for very low production models. The 
emissionsstandards of this part do not apply to engines of very low 
totalproduction after the date of applicability. For the purpose of 
thispart, ``very low production'' is limited to a maximumtotal 
production for United States civil aviation applications of nomore than 
200 units covered by the same type certificate after January1, 1984.
    (c) Exemptions for New Engines in Other Categories. Theemissions 
standards of this part do not apply to engines for which theSecretary 
determines, with the concurrence of the Administrator, thatapplication 
of any standard under Sec. 87.21 is notjustified, based upon 
consideration of:
    (1) Adverse economic impact on the manufacturer.
    (2) Adverse economic impact on the aircraft and airline industriesat 
large.
    (3) Equity in administering the standards among all 
economicallycompeting parties.
    (4) Public health and welfare effects.
    (5) Other factors which the Secretary, after consultation with 
theAdministrator, may deem relevant to the case in question.
    (d) Time Limited Exemptions for In Use Engines. Theemissions 
standards of this part do not apply to aircraft or aircraftengines for 
time periods which the Secretary determines, with theconcurrence of the 
Administrator, that any applicable standard underSec. 87.11(a),

[[Page 8]]

Sec. 87.31(a), orSec. 87.31(c), should not be applied based 
uponconsideration of the following:
    (1) Documentation demonstrating that all good faith efforts 
toachieve compliance with such standard have been made.
    (2) Documentation demonstrating that the inability to comply 
withsuch standard is due to circumstances beyond the control of the 
owneror operator of the aircraft.
    (3) A plan in which the owner or operator of the aircraft showsthat 
he will achieve compliance in the shortest time which isfeasible.
    (4) Applications for a determination that any requirements ofSec. 
87.11(a), Sec. 87.31(a) orSec. 87.31(c) do not apply shall be 
submitted in duplicateto the Secretary in accordance with procedures 
established by theSecretary.
    (e) The Secretary shall publish in the Federal Register thename of 
the organization to whom exemptions are granted and the periodof such 
exemptions.
    (f) No state or political subdivision thereof may attempt toenforce 
a standard respecting emissions from an aircraft or engine ifsuch 
aircraft or engine has been exempted from such standard underthis part.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug.9, 1984; 49 
FR 41002, Oct. 18, 1984; 70 FR 69686, Nov. 17, 2005]



Sec. 87.8  Incorporation by reference.

    We have incorporated by reference the documents listed in 
thissection. The Director of the Federal Register approved 
theincorporation by reference as prescribed in 5 U.S.C. 552(a) and 1 
CFRpart 51. Anyone may inspect copies at the U.S. EPA, Air and 
RadiationDocket and Information Center, 1301 Constitution Ave., NW., 
Room B102,EPA West Building, Washington, DC 20460 or at the National 
Archivesand Records Administration (NARA). For information on the 
availabilityof this material at NARA, call 202-741-6030, or go to:http:/
/www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (a) ICAO material. Table 1 of Sec. 87.8 listsmaterial from the 
International Civil Aviation Organization that wehave incorporated by 
reference. The first column lists the number andname of the material. 
The second column lists the sections of thispart where we reference it. 
Anyone may purchase copies of thesematerials from the International 
Civil Aviation Organization, DocumentSales Unit, 999 University Street, 
Montreal, Quebec, Canada H3C 5H7.Table 1 follows:

                  Table 1 of Sec.  87.8--ICAOMaterials
------------------------------------------------------------------------
         Document number and name                 Part 87 reference
------------------------------------------------------------------------
International Civil Aviation Organization   87.8, 87.64, 87.71, 87.82,
 Annex 16, EnvironmentalProtection, Volume   87.89.
 II, Aircraft Engine Emissions, Second
 Edition, July1993, Including Amendment 3
 of March 20, 1997 (as indicated
 infootnoted pages.).
------------------------------------------------------------------------

    (b) [Reserved]

[70 FR 69686, Nov. 17, 2005]



  Subpart B_Engine Fuel Venting Emissions (New and In-UseAircraft Gas 
                            Turbine Engines)



Sec. 87.10  Applicability.

    (a) The provisions of this subpart are applicable to all newaircraft 
gas turbines of classes T3, T8, TSS and TF equal to orgreater than 36 
kilonewton rated output, manufactured on or afterJanuary 1, 1974, and to 
all in-use aircraft gas turbine engines ofclasses T3, T8, TSS and TF 
equal to or greater than 36 kilonewtonrated output manufactured after 
February 1, 1974.
    (b) The provisions of this subpart are also applicable to all 
newaircraft gas turbines of class TF less than 36 kilonewton rated 
outputand class TP manufactured on or after January 1, 1975 and to all 
in-use aircraft gas turbines of class TF less than 36 kilonewton 
ratedoutput and class TP manufactured after January 1, 1975.

[49 FR 41002, Oct. 18, 1984]



Sec. 87.11  Standard for fuel venting emissions.

    (a) No fuel venting emissions shall be discharged into theatmosphere 
from any new or in-use aircraft gas turbine engine subjectto the 
subpart. This paragraph is directed at the elimination ofintentional 
discharge to the atmosphere of fuel drained from fuel

[[Page 9]]

nozzle manifolds after engines are shut down and does not apply tonormal 
fuel seepage from shaft seals, joints, and fittings.
    (b) Conformity with the standard set forth in paragraph (a) ofthis 
section shall be determined by inspection of the method designedto 
eliminate these emissions.



      Subpart C_Exhaust Emissions (New Aircraft Gas TurbineEngines)



Sec. 87.20  Applicability.

    The provisions of this subpart are applicable to all aircraft 
gasturbine engines of the classes specified beginning on the 
datesspecified.



Sec. 87.21  Standards for exhaust emissions.

    (a) Exhaust emissions of smoke from each new aircraft gas 
turbineengine of class T8 manufactured on or after February 1, 1974, 
shallnot exceed: Smoke number of 30.
    (b) Exhaust emissions of smoke from each new aircraft gas 
turbineengine of class TF and of rated output of 129 kilonewtons thrust 
orgreater, manufactured on or after January 1, 1976, shall not exceed:

SN=83.6(r0)-0.274 (r0 is in kilonewtons).

    (c) Exhaust emission of smoke from each new aircraft gas 
turbineengine of class T3 manufactured on or after January 1, 1978, 
shall notexceed: Smoke number of 25.
    (d) Gaseous exhaust emissions from each new commercial aircraftgas 
turbine engine shall not exceed:
    (1) Classes TF, T3, T8 engines greater than 26.7 kilonewtons 
ratedoutput:
    (i) Engines manufactured on or after January 1, 1984:

Hydrocarbons: 19.6 grams/kilonewton rO.

    (ii) Engines manufactured on or after July 7, 1997.

Carbon Monoxide: 118 grams/kilonewton rO.

    (iii) Engines of a type or model of which the date of manufactureof 
the first individual production model was on or before December 31,1995 
and for which the date of manufacture of the individual enginewas on or 
before December 31, 1999.

Oxides of Nitrogen: (40 + 2(rPR)) grams/kilonewtons rO.

    (iv) Engines of a type or model of which the date of manufactureof 
the first individual production model was after December 31, 1995or for 
which the date of manufacture of the individual engine wasafter December 
31, 1999:

Oxides of Nitrogen: (32 + 1.6(rPR)) grams/kilonewtons rO.

    (v) The emission standards prescribed in paragraphs (d)(1) (iii)and 
(iv) of this section apply as prescribed beginning July 7, 1997.
    (vi) Engines of a type or model of which the date of manufactureof 
the first individual production model was after December 31, 2003:
    (A) Engines with a rated pressure ratio of 30 or less:
    (1) Engines with a maximum rated output greater than 89kilonewtons:
    Oxides of Nitrogen: (19 + 1.6(rPR)) grams/kilonewtons rO.
    (2) Engines with a maximum rated output greater than 26.7kilonewtons 
but not greater than 89 kilonewtons:
    Oxides ofNitrogen: (37.572 + 1.6(rPR) - 0.2087(rO)) grams/
kilonewtonsrO.
    (B) Engines with a rated pressure ratio greater than 30 but lessthan 
62.5:
    (1) Engines with a maximum rated output greater than 89kilonewtons:
    Oxides of Nitrogen: (7 + 2(rPR)) grams/kilonewtons rO.
    (2) Engines with a maximum rated output greater than 26.7kilonewtons 
but not greater than 89 kilonewtons:
    Oxides ofNitrogen: (42.71 + 1.4286(rPR) - 0.4013(rO) + 0.00642(rPRx 
rO)) grams/kilonewtons rO.
    (C) Engines with a rated pressure ratio of 62.5 or more:
    Oxidesof Nitrogen: (32 + 1.6(rPR)) grams/kilonewtons rO.
    (vii) The emission standards prescribed in paragraph (d)(1)(vi) 
ofthis section shall apply as prescribed beginning December 19, 2005.
    (2) Class TSS: Engines manufactured on or after January 1, 1984:

Hydrocarbons=140(0.92)\rPR\ grams/kilonewtons rO.


[[Page 10]]


    (e) Smoke exhaust emissions from each gas turbine engine ofthe 
classes specified below shall not exceed:
    (1) Class TF of rated output less than 26.7 kilonewtonsmanufactured 
on or after (one year from date of publication):

SN=83.6(ro)-0.274 (ro is in kilonewtons) not toexceed a 
    maximum of SN=50.

    (2) Classes T3, T8, TSS and TF of rated output equal to or 
greaterthan 26.7 kilonewtons manufactured on or after January 1, 1984:

SN=83.6(ro)-0.274 (ro is in kilonewtons) not toexceed a 
    maximum of SN=50.

    (3) Class TP of rated output equal to or greater than 1,000kilowatts 
manufactured on or after January 1, 1984:

SN=187(ro) -0.168 (ro is in kilowatts)

    (f) The standards set forth in paragraphs (a), (b), (c), (d), and(e) 
of this section refer to a composite gaseous emission samplerepresenting 
the operating cycles set forth in the applicable sectionsof subpart G of 
this part, and exhaust smoke emissions emitted duringoperations of the 
engine as specified in the applicable sections ofsubpart H of this part, 
measured and calculated in accordance with theprocedures set forth in 
those subparts.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug.9, 1984; 62 
FR 25365, May 8, 1997; 70 FR 69686, Nov. 17, 2005]



    Subpart D_Exhaust Emissions (In-Use Aircraft Gas TurbineEngines)



Sec. 87.30  Applicability.

    The provisions of this subpart are applicable to all in-useaircraft 
gas turbine engines certified for operation within the UnitedStates of 
the classes specified beginning on the dates specified.



Sec. 87.31  Standards for exhaust emissions.

    (a) Exhaust emissions of smoke from each in-use aircraft gasturbine 
engine of Class T8, beginning February 1, 1974, shall notexceed: Smoke 
number of 30.
    (b) Exhaust emissions of smoke from each in-use aircraft gasturbine 
engine of class TF and of rated output of 129 kilonewtonsthrust or 
greater, beginning January 1, 1976, shall not exceed:

SN=83.6(r0)-0.274(r0 is in kilonewtons).

    (c) The standards set forth in paragraphs (a) and (b) of thissection 
refer to exhaust smoke emissions emitted during operations ofthe engine 
as specified in the applicable section of subpart H of thispart, and 
measured and calculated in accordance with the proceduresset forth in 
this subpart.

[47 FR 58470, Dec. 30, 1982, as amended at 48 FR 2718, Jan.20, 1983]

Subparts E-F [Reserved]



Subpart G_Test Procedures for Engine Exhaust GaseousEmissions (Aircraft 
                    and Aircraft Gas Turbine Engines)



Sec. 87.60  Introduction.

    (a) Except as provided under Sec. 87.5, the proceduresdescribed in 
this subpart shall be the test program to determine theconformity of new 
aircraft gas turbine engines with the applicablestandards set forth in 
this part.
    (b) The test consists of operating the engine at prescribed 
powersettings on an engine dynamometer (for engines producing 
primarilyshaft power) or thrust measuring test stand (for engines 
producingprimarily thrust). The exhaust gases generated during engine 
operationare sampled continuously for specific component analysis 
through theanalytical train.
    (c) The exhaust emission test is designed to measure 
hydrocarbons,carbon monoxide, carbon dioxide, and oxides of 
nitrogenconcentrations, and to determine mass emissions through 
calculationsduring a simulated aircraft landing-takeoff cycle (LTO). The 
LTO cycleis based on time in mode data during high activity periods at 
majorairports. The test for propulsion engines consists of at least 
thefollowing four modes of engine operation: taxi/idle, 
takeoff,climbout, and approach. The mass emission for the modes are 
combinedto yield the reported values.
    (d) When an engine is tested for exhaust emissions on an 
enginedynamometer or test stand, the complete

[[Page 11]]

engine shall be used withall accessories which might reasonably be 
expected to influenceemissions to the atmosphere installed and 
functioning, if nototherwise prohibited by Sec. 87.62(a)(2). Use of 
service airbleed and shaft power extraction to power auxiliary gearbox-
mountedcomponents required to drive aircraft systems is not permitted.
    (e) Other gaseous emissions measurement systems may be used ifshown 
to yield equivalent results and if approved in advance by 
theAdministrator or the Secretary.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug.9, 1984; 62 
FR 25366, May 8, 1997]



Sec. 87.61  Turbine fuel specifications.

    For exhaust emission testing, fuel meeting the specificationslisted 
in this section shall be used. Additives used for the purposeof smoke 
suppression (such as organometallic compounds) shall not bepresent.

                 Property and Allowable Range of Values

Density kg/m\3\ at 15 [deg]C: 780-820.
Distillation temperature, [deg]C: 10% boiling point,155-201; final 
boiling point, 235-285.
Net heat of combustion, MJ/kg: 42.86-43.50.
Aromatics, volume %: 15-23.
Naphthalenes, volume %: 1.0-3.5.
Smoke point, mm: 20-28.
Hydrogen, mass %: 13.4-14.1.
Sulfur, mass %: less than 0.3%.
Kinematic viscosity at -20 [deg]C, mm\2\/s:2.5-6.5.

[62 FR 25366, May 8, 1997]



Sec. 87.62  Test procedure (propulsion engines).

    (a)(1) The engine shall be tested in each of the following 
engineoperating modes which simulate aircraft operation to determine 
itsmass emission rates. The actual power setting, when corrected 
tostandard day conditions, should correspond to the followingpercentages 
of rated output. Analytical correction for variations fromreference day 
conditions and minor variations in actual power settingshould be 
specified and/or approved by the Secretary:

------------------------------------------------------------------------
                                                         Class
                                              --------------------------
                     Mode                               TF, T3,
                                                  TP       T8      TSS
------------------------------------------------------------------------
Taxi/idle....................................   (\1\ )   (\1\ )   (\1\ )
Takeoff......................................      100      100      100
Climbout.....................................       90       85       65
Descent......................................       NA       NA       15
Approach.....................................       30       30       34
------------------------------------------------------------------------
\1\ See paragraph (a)(2) of this section.

    (2) The taxi/idle operating modes shall be carried out at a 
powersetting of 7% rated thrust unless the Secretary determines that 
theunique characteristics of an engine model undergoing 
certificationtesting at 7% would result in substantially different HC 
and COemissions than if the engine model were tested at the 
manufacturersrecommended idle power setting. In such cases the Secretary 
shallspecify an alternative test condition.
    (3) The times in mode (TIM) shall be as specified below:

------------------------------------------------------------------------
                                                         Class
                                              --------------------------
                     Mode                                TF, T3
                                                  TP     or T8     TSS
------------------------------------------------------------------------
Taxi/idle (minutes)..........................     26.0     26.0     26.0
Takeoff......................................      0.5      0.7      1.2
Climbout.....................................      2.5      2.2      2.0
Descent......................................      N/A      N/A      1.2
Approach.....................................      4.5      4.0      2.3
------------------------------------------------------------------------

    (b) Emissions testing shall be conducted on warmed-up engineswhich 
have achieved a steady operating temperature.

[47 FR 58470, Dec. 30, 1982, as amended at 62 FR 25366, May 8,1997]



Sec. 87.63  [Reserved]



Sec. 87.64  Sampling and analytical procedures for measuring gaseous exhaustemissions.

    The system and procedures for sampling and measurement of 
gaseousemissions shall be as specified by Appendices 3 and 5 to ICAO 
Annex 16(incorporated by reference in Sec. 87.8).

[70 FR 69686, Nov. 17, 2005]



Sec. Sec. 87.65-87.70  [Reserved]



Sec. 87.71  Compliance with gaseous emission standards.

    Compliance with each gaseous emission standard by an aircraftengine 
shall be determined by comparing the pollutant level ingrams/kilonewton/
thrust/cycle or grams/kilowatt/cycle as

[[Page 12]]

calculated in Sec. 87.64 with the applicable emissionstandard under 
this part. An acceptable alternative to testing everyengine is described 
in Appendix 6 to ICAO Annex 16 (incorporated byreference in Sec. 87.8). 
Other methods of demonstratingcompliance may be approved by the 
Secretary with the concurrence ofthe Administrator.

[70 FR 69686, Nov. 17, 2005]



   Subpart H_Test Procedures for Engine Smoke Emissions(Aircraft Gas 
                            Turbine Engines)



Sec. 87.80  Introduction.

    Except as provided under Sec. 87.5, the proceduresdescribed in this 
subpart shall be the test program to determine theconformity of new and 
in-use gas turbine engines with the applicablestandards set forth in 
this part. The test is essentially the same asthat described in 
Sec. Sec. 87.60 through 87.62, exceptthat the test is designed to 
determine the smoke emission level atvarious operating points 
representative of engine usage in aircraft.Other smoke measurement 
systems may be used if shown to yieldequivalent results and if approved 
in advance by the Administrator orthe Secretary.



Sec. 87.81  Fuel specifications.

    Fuel having specifications as provided in Sec. 87.61shall be used 
in smoke emission testing.



Sec. 87.82  Sampling and analytical procedures for measuring smoke exhaustemissions.

    The system and procedures for sampling and measurement of 
smokeemissions shall be as specified by Appendix 2 to ICAO Annex 
16(incorporated by reference in Sec. 87.8).

[70 FR 69687, Nov. 17, 2005]



Sec. Sec. 87.83-87.88  [Reserved]



Sec. 87.89  Compliance with smoke emission standards.

    Compliance with each smoke emission standard shall be determinedby 
comparing the plot of SN as a function of power setting with 
theapplicable emission standard under this part. The SN at every 
powersetting must be such that there is a high degree of confidence 
thatthe standard will not be exceeded by any engine of the model 
beingtested. An acceptable alternative to testing every engine is 
describedin Appendix 6 to ICAO Annex 16 (incorporated by reference 
inSec. 87.8).

[70 FR 69687, Nov. 17, 2005]



PART 88_CLEAN-FUEL VEHICLES--Table of Contents




          Subpart A_Emission Standards for Clean-Fuel Vehicles

Sec.
88.101-94 General applicability.
88.102-94 Definitions.
88.103-94 Abbreviations.
88.104-94 Clean-fuel vehicle tailpipe emissionstandards for light-duty 
          vehicles and light-duty trucks.
88.105-94 Clean-fuel fleet emission standards forheavy-duty engines.

                 Subpart B_California Pilot Test Program

88.201-94 Scope.
88.202-94 Definitions.
88.203-94 Abbreviations.
88.204-94 Sales requirements for the California PilotTest Program.
88.205-94 California Pilot Test Program CreditsProgram.
88.206-94 State opt-in for the California Pilot TestProgram.

Tables to Subpart B of Part 88

                   Subpart C_Clean-Fuel Fleet Program

88.301-93 General applicability.
88.302-93 Definitions.
88.302-94 Definitions.
88.303-93 Abbreviations.
88.304-94 Clean-fuel Fleet Vehicle Credit Program.
88.305-94 Clean-fuel fleet vehicle labelingrequirements for heavy-duty 
          vehicles.
88.306-94 Requirements for a converted vehicle toqualify as a clean-fuel 
          fleet vehicle.
88.307-94 Exemption from temporal transporationcontrol measures for 
          CFFVs.
88.308-94 Programmatic requirements for clean-fuelfleet vehicles.
88.309 [Reserved]
88.310-94 Applicability to covered Federal fleets.
88.311-93 Emissions standards for Inherently Low-Emission Vehicles.
88.311-98 Emissions standards for Inherently Low-Emission Vehicles.
88.312-93 Inherently Low-Emission Vehicle labeling.

[[Page 13]]

88.313-93 Incentives for the purchase ofInherently Low-Emission 
          Vehicles.

Tables to Subpart C of Part 88

    Authority: 42 U.S.C. 7410, 7418, 7581, 7582, 7583, 7584,7586, 7588, 
7589, 7601(a).

    Source: 57 FR 60046, Dec. 17, 1992, unless otherwisenoted.



          Subpart A_Emission Standards for Clean-Fuel Vehicles



Sec. 88.101-94  General applicability.

    The clean-fuel vehicle standards and provisions of this subpartare 
applicable to vehicles used in subpart B of this part (the CleanFuel 
Fleet Program) and subpart C of this part (the California PilotTest 
Program).

[59 FR 50074, Sept. 30, 1994]



Sec. 88.102-94  Definitions.

    Any terms defined in 40 CFR part 86 and not defined in this 
partshall have the meaning given them in 40 CFR part 86, subpart A.
    Adjusted Loaded Vehicle Weight is defined as the numericalaverage of 
the vehicle curb weight and the GVWR.
    Dual Fuel Vehicle (or Engine) means any motor vehicle (ormotor 
vehicle engine) engineered and designed to be operated on twodifferent 
fuels, but not on a mixture of the fuels.
    Flexible Fuel Vehicle (or Engine) means any motor vehicle(or motor 
vehicle engine) engineered and designed to be operated onany mixture of 
two or more different fuels.
    Heavy Light-Duty Truck means any light-duty truck ratedgreater than 
6000 lbs. GVWR.
    Light Light-Duty Truck means any light-duty truck ratedthrough 6000 
lbs GVWR.
    Loaded Vehicle Weight is defined as the curb weight plus 300lbs.
    Low-Emission Vehicle means any light-duty vehicle or light-duty 
truck conforming to the applicable Low-Emission Vehicle standard,or any 
heavy-duty vehicle with an engine conforming to the applicableLow-
Emission Vehicle standard.
    Non-methane Hydrocarbon Equivalent means the sum of thecarbon mass 
emissions of non-oxygenated non-methane hydrocarbons plusthe carbon mass 
emissions of alcohols, aldehydes, or other organiccompounds which are 
separately measured in accordance with theapplicable test procedures of 
40 CFR part 86, expressed as gasoline-fueled vehicle non-methane 
hydrocarbons. In the case of exhaustemissions, the hydrogen-to-carbon 
ratio of the equivalent hydrocarbonis 1.85:1. In the case of diurnal and 
hot soak emissions, thehydrogen-to-carbon ratios of the equivalent 
hydrocarbons are 2.33:1and 2.2:1 respectively.
    Non-methane Organic Gas is defined as in section 241(3)Clean Air Act 
as amended (42 U.S.C. 7581(3)).
    Test Weight is defined as the average of the curb weight andthe 
GVWR.
    Transitional Low-Emission Vehicle means any light-dutyvehicle or 
light-duty truck conforming to the applicable TransitionalLow-Emission 
Vehicle standard.
    Ultra Low-Emission Vehicle means any light-duty vehicle orlight-duty 
truck conforming to the applicable Ultra Low-EmissionVehicle standard, 
or any heavy-duty vehicle with an engine conformingto the applicable 
Ultra Low-Emission Vehicle standard.
    Zero-Emission Vehicle means any light-duty vehicle or light-
dutytruck conforming to the applicable Zero-Emission Vehicle standard,or 
any heavy-duty vehicle conforming to the applicable Zero-EmissionVehicle 
standard.

[57 FR 60046, Dec. 17, 1992. Redesignated and amended at 59 FR50074, 
Sept. 30, 1994]



Sec. 88.103-94  Abbreviations.

    The abbreviations of part 86 also apply to this subpart. 
Theabbreviations in this section apply to all of part 88.

ALVW--Adjusted Loaded Vehicle Weight
CO--Carbon Monoxide
HCHO--Formaldehyde
HC--Hydrocarbon
HDV--Heavy-Duty Vehicle
LDT--Light-Duty Truck
LDV--Light-Duty Vehicle
NMHC--Non-Methane Hydrocarbon
NMHCE--Non-Methane Hydrocarbon Equivalent
NMOG--Non-Methane Organic Gas
NOx--Nitrogen Oxides
PM--Particulate Matter
GVWR--Gross Vehicle Weight Rating
LVW--Loaded Vehicle Weight
TW--Test Weight

[[Page 14]]

TLEV--Transitional Low-Emission Vehicle
LEV--Low-Emission Vehicle
ULEV--Ultra Low-Emission Vehicle
ZEV--Zero-Emission Vehicle

[57 FR 60046, Dec. 17, 1992. Redesignated and amended at 59 FR50074, 
Sept. 30, 1994]



Sec. 88.104-94  Clean-fuel vehicle tailpipe emission standards for light-dutyvehicles and light-duty trucks.

    (a) A light-duty vehicle or light-duty truck will be considered asa 
TLEV, LEV, ULEV, or ZEV if it meets the applicable requirements ofthis 
section.
    (b) Light-duty vehicles certified to the exhaust emissionstandards 
for TLEVs, LEVs, and ULEVs in Tables A104-1 andA104-2 shall be 
considered as meeting the requirements of thissection for that 
particular vehicle emission category for model years1994-2000 for the 
California Pilot Program.
    (c) Light-duty vehicles certified to the exhaust emissionstandards 
for LEVs and ULEVs in Tables A104-1 and A104-2shall be considered as 
meeting the requirements of this section forthat particular vehicle 
emission category for model years 2001 andlater for the California Pilot 
Program, and for model years 1998 andlater for the Clean Fuel Fleet 
Program.
    (d) Light light-duty trucks certified to the exhaust 
emissionstandards for a specific weight category for TLEVs, LEVs, and 
ULEVs inTables A104-3 and A104-4 shall be considered as meetingthe 
requirements of this section for that particular vehicle 
emissioncategory. For model years 1994-2000 for the California 
PilotProgram.
    (e) Light Light-duty trucks certified to the exhaust 
emissionstandards for a specific weight category for LEVs and ULEVs in 
TablesA104-3 and A104-4 shall be considered as meeting therequirements 
of this section for that particular vehicle emissioncategory. For model 
years 2001 and later for the California PilotProgram, and for model 
years 1998 and later for the Clean Fuel FleetProgram.
    (f) Heavy light-duty trucks certified to the exhaust 
emissionstandards for a specific weight category of LEVs and ULEVs in 
TablesA104-5 and A104-6 for model years 1998 and later shallbe 
considered as meeting the requirements of this section for 
thatparticular vehicle emission category.
    (g) A light-duty vehicle or light-duty truck shall be certified asa 
ZEV if it is determined by engineering analysis that the 
vehiclesatisfies the following conditions:
    (1) The vehicle fuel system(s) must not contain either carbon 
ornitrogen compounds (including air) which, when burned, form any of 
thepollutants listed in Table A104-1 as exhaust emissions.
    (2) All primary and auxiliary equipment and engines must have 
noemissions of any of the pollutants listed in Table A104-1.
    (3) The vehicle fuel system(s) and any auxiliary engine(s) musthave 
no evaporative emissions in use.
    (4) Any auxiliary heater must not operate at ambient 
temperaturesabove 40 degrees Fahrenheit.
    (h) NMOG standards for flexible- and dual-fueled vehicles 
whenoperating on clean alternative fuel--(1) Light-dutyvehicles, and 
light light-duty trucks. Flexible- and dual-fueledLDVs and light LDTs of 
1996 model year and later shall meet allstandards in Table A104-7 for 
vehicles of the applicable modelyear, loaded vehicle weight, and vehicle 
emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- anddual-fueled 
LDTs above 6,000 lbs. GVWR of 1998 model year and latershall meet all 
standards in Table A104-8 for vehicles of theapplicable test weight and 
vehicle emission category.
    (i) NMOG standards for flexible- and dual-fueled vehicles 
whenoperating on conventional fuel--(1) Light-duty vehicles,and light 
light-duty trucks. Flexible- and dual-fueled LDVs andlight LDTs of 1996 
model year and later shall meet all standards inTable A104-9 for 
vehicles of the applicable model year, loadedvehicle weight, and vehicle 
emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- anddual-fueled 
LDTs of 1998 model year and later shall meet all standardsin Table A104-
10 for vehicles of the applicable test weight andvehicle emission 
category.
    (j) Other standards for flexible- and dual-fueled vehicles.When 
operating on clean alternative fuel, flexible- and dual- fueledlight-
duty vehicles and light light-duty trucks must also meet

[[Page 15]]

theappropriate standards for carbon monoxide, oxides of 
nitrogen,formaldehyde, and particulate matter as designated in 
paragraphs (a)through (f) of this section as well as all other 
applicable standardsand requirements. When operating on conventional 
fuel, flexible- anddual-fueled vehicles must also meet all other 
applicable standards andrequirements in 40 CFR part 86.
    (k) Motor vehicles subject to standards and requirements of 
thissection shall also comply with all applicable standards 
andrequirements of 40 CFR part 86, except that any exhaust 
emissionstandards in 40 CFR part 86 pertaining to pollutants for 
whichstandards are established in this section shall not apply. 
Forconverted vehicles, the applicable standards and requirements of 
40CFR part 86 and this part 88 shall apply based on the model year 
inwhich the conversion is performed, regardless of the model year 
inwhich the base vehicle was originally manufactured prior toconversion.
    (1) Gaseous-fueled, diesel-fueled, and electric clean-fuelvehicles 
are waived from cold CO test requirements of subpart C ofthis part if 
compliance is demonstrated by engineering analysis ortest data.
    (2) The standards in this section shall be administered andenforced 
in accordance with the California Regulatory RequirementsApplicable to 
the Clean Fuel Fleet and California Pilot Programs,April 1, 1994, which 
are incorporated by reference.
    (i) This incorporation by reference was approved by the Directorof 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFRpart 
51.
    (ii) Copies may be inspected at U.S. EPA, OAR, 401 M St., 
SW.,Washington, DC 20460, or at the National Archives and 
RecordsAdministration (NARA). For information on the availability of 
thismaterial at NARA, call 202-741-6030, or go to:http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html. Copies of these materials may be obtainedfrom Barclay's 
Law Publishers, 400 Oyster Point Boulevard, P.O. Box3066, South San 
Francisco, CA 94080, phone (415) 244-6611.

                        Tables to Sec. 88.104-94

  TableA104-1--Intermediate Useful Life Standards (g/mi) forLight-Duty Vehicles for HCs, CO, NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                  Vehicle emission category          NMOG          CO          NOX          HCHO        PM \1\
----------------------------------------------------------------------------------------------------------------
             TLEV..............................        0.125          3.4          0.4        0.015  ...........
             LEV...............................     \2\ .075      \2\ 3.4           .2     \2\ .015  ...........
             ULEV..............................         .040          1.7       \2\ .2         .008  ...........
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


      Table A104-2--FullUseful Life Standards (g/mi) for Light-Duty Vehicles for HCs, CO,NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                  Vehicle emission category          NMOG          CO          NOX          HCHO        PM \1\
----------------------------------------------------------------------------------------------------------------
             TLEV..............................        0.156          4.2          0.6        0.018         0.08
             LEV...............................    \2\ 0.090      \2\ 4.2           .3     \2\ .018      \2\ .08
             ULEV..............................         .055          2.1       \2\ .3         .011          .04
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


TableA104-3--Intermediate Useful Life Standards (g/mi) forLight Light-Duty Trucks for HCs, CO, NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       LVW (lbs)                category             NMOG          CO          NOX          HCHO        PM \1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  TLEV..................         .125          3.4           .4         .015  ...........
                         LEV...................     \2\ .075      \2\ 3.4           .2     \2\ .015  ...........
                         ULEV..................         .040          1.7       \2\ .2         .008  ...........
3751-5750..............  TLEV..................        0.160          4.4           .7         .018  ...........

[[Page 16]]

 
                         LEV...................     \2\ .100      \2\ 4.4           .4     \2\ .018  ...........
                         ULEV..................         .050          2.2       \2\ .4         .009  ...........
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


    Table A104-4--FullUseful Life Standards (g/mi) for Light Light-Duty Trucks for HCs, CO,NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                                Vehicle
       LVW (lbs)            emissioncategory         NMOG          CO          NOX          HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750................  TLEV...................        0.156          4.2          0.6        0.018         0.08
                        LEV....................    \2\ 0.090      \2\ 4.2          0.3      \2\.018       \2\.08
                        ULEV...................         .055          2.1        \2\.3         .011          .04
3751-5750.............  TLEV...................         .200          5.5           .9         .023          .08
                        LEV....................      \2\.130       \2\5.5           .5      \2\.023       \2\.08
                        ULEV...................         .070          2.8        \2\.5         .013          .04
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


TableA104-5--Intermediate Useful Life Standards (g/mi) forHeavy Light-Duty Trucks for HCs, CO, NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       ALVW (lbs)               category             NMOG          CO         NOX\2\        HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  LEV...................    \3\ 0.125      \3\ 3.4          0.4  \3\[th]nsp;
                                                                                              0.015
                         ULEV..................         .075          1.7        \3\.2         .008
3751-5750..............  LEV...................      \3\.160      \3\ 4.4           .7      \3\.018
                         ULEV..................         .100          2.2        \3\.4         .009
5751-..................  LEV...................      \3\.195      \3\ 5.0          1.1      \3\.022
                         ULEV..................         .117          2.5        \3\.6         .011
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Does not apply to diesel vehicles.
\3\ Applies to ILEVs.


    Table A104-6--FullUseful Life Standards (g/mi) for Heavy Light-Duty Trucks for HCs, CO,NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                                Vehicle
      ALVW (lbs)            emissioncategory         NMOG          CO          NOX          HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750................  LEV....................    \2\ 0.180      \2\ 5.0          0.6  \2\[th]nsp;     \2\ 0.08
                                                                                              0.022
                        ULEV...................         .107          2.5        \2\.3         .012          .04
3751-5750.............  LEV....................      \2\.230      \2\ 6.4          1.0      \2\.027       \2\.10
                        ULEV...................         .143          3.2        \2\.5         .013          .05
5751-.................  LEV....................      \2\.280      \2\ 7.3          1.5      \2\.032       \2\.12
                        ULEV...................         .167          3.7        \2\.8         .016          .06
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


    Table A104-7--NMOG Standards(g/mi) for Flexible- and Dual-Fueled
  Vehicles When Operating on CleanAlternative Fuel for Light Light-Duty
                     Trucks and Light-Duty Vehicles
------------------------------------------------------------------------
                                               50,000 mile
                 Vehicle type                      NMOG     100,000 mile
                                                 standard   NMOGstandard
------------------------------------------------------------------------
MY 1996 and later:
    LDTs (0-3,750 lbs. LVW) and LDVs.........        0.125         0.156
    LDTs (3,751-5,750 lbs. LVW)..............         .160          .200
Beginning MY 2001:
    LDTs (0-3,750 lbs. LVW) and LDVs.........         .075          .090
    LDTs (3,751-5,750 lbs. LVW)..............         .100          .130
------------------------------------------------------------------------


[[Page 17]]


    Table A104-8--NMOG Standards(g/mi) for Flexible- and Dual-Fueled
  Vehicles When Operating on CleanAlternative Fuel for Heavy Light-Duty
                                 Trucks
------------------------------------------------------------------------
                                                50,000 mile    120,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
Beginning MY 1998:
    LDTs (0-3,750 lbs. ALVW)..................        0.125        0.180
    LDTs (3,751-5,750 lbs. ALVW)..............         .160         .230
    LDTs (5,751-8,500 lbs. ALVW)..............         .195         .280
------------------------------------------------------------------------


    Table A104-9--NMOG Standards(g/mi) for Flexible- and Dual-Fueled
 Vehicles When Operating onConventional Fuel for Light Light-Duty Trucks
                         and Light-Duty Vehicles
------------------------------------------------------------------------
                                               50,000 mile
                 Vehicle type                      NMOG     100,000 mile
                                                 standard   NMOGstandard
------------------------------------------------------------------------
Beginning MY 1996:
    LDTs (0-3,750 lbs. LVW) and LDVs.........         0.25          0.31
    LDTs (3,751-5,750 lbs. LVW)..............          .32           .40
Beginning MY 2001:
    LDTs (0-3,750 lbs. LVW) and LDVs.........         .125          .156
    LDTs (3,751-5,750 lbs. LVW)..............         .160          .200
------------------------------------------------------------------------


    Table A104-10--NMOG Standards(g/mi) for Flexible- and Dual-Fueled
 Vehicles When Operating onConventional Fuel for Light Light-Duty Trucks
------------------------------------------------------------------------
                                                50,000 mile    120,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
Beginning MY 1998:
    LDTs (0-3,750 lbs. ALVW)..................         0.25         0.36
    LDTs (3,751-5,750 lbs. ALVW)..............          .32          .46
    LDTs (5,751-8,500 lbs. ALVW)..............          .39          .56
------------------------------------------------------------------------


[59 FR 50074, Sept. 30, 1994, as amended at 61 FR 127, Jan. 3,1996]



Sec. 88.105-94  Clean-fuel fleet emission standards for heavy-duty engines.

    (a) Exhaust emissions from engines used in heavy-duty low 
emissionvehicles shall meet one of the following standards:
    (1) Combined emissions of oxides of nitrogen and 
nonmethanehydrocarbons (or nonmethane hydrocarbon equivalent) shall not 
exceed3.8 grams per brake horsepower-hour.
    (2) Combined emissions of oxides of nitrogen and 
nonmethanehydrocarbons (or nonmethane hydrocarbon equivalent) shall not 
exceed3.5 grams per brake horsepower-hour when tested (certified) on 
fuelmeeting the specifications of California certification fuel.
    (b) Exhaust emissions from engines used in heavy-duty low 
emissionvehicles shall meet conventional vehicle standards set forth in 
Part86 for total hydrocarbon, carbon monoxide, particulate, and 
organicmaterial hydrocarbon equivalent.
    (c) Exhaust emissions from engines used in ultra-low emissionheavy-
duty vehicles shall meet each of the following standards:
    (1) The combined emissions of oxides of nitrogen and 
nonmethanehydrocarbons (or nonmethane hydrocarbon equivalent) shall not 
exceed2.5 grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 7.2 grams per 
brakehorsepower-hour.
    (3) Particulate emissions shall not exceed 0.05 grams per 
brakehorsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.025 grams per 
brakehorsepower-hour.
    (d) Exhaust emissions from engines used in inherently-low 
emissionheavy-duty vehicles shall meet each of the following standards:

[[Page 18]]

    (1) The combined emissions of oxides of nitrogen andnonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shallnot exceed 2.5 
grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 14.4 grams perbrake 
horsepower-hour.
    (3) Particulate emissions shall not exceed 0.10 grams per 
brakehorsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.05 grams per 
brakehorsepower-hour.
    (e) The standards set forth in paragraphs (a), (b), (c), and (d)of 
this section refer to the exhaust emitted while the vehicle isbeing 
tested in accordance with the applicable test procedures setforth in 40 
CFR part 86, subpart N.
    (f)(1) A heavy-duty zero-emission vehicle (ZEV) has a standard 
ofzero emissions for nonmethane hydrocarbons, oxides of nitrogen, 
carbonmonoxide, formaldehyde, and particulates.
    (2) A heavy-duty vehicle shall be certified as a ZEV if it 
isdetermined by engineering analysis that the vehicle satisfies 
thefollowing conditions:
    (i) The vehicle fuel system(s) must not contain either carbon 
ornitrogen compounds (including air) which, when burned, form 
nonmethanehydrocarbons, oxides of nitrogen, carbon monoxide, 
formaldehyde, orparticulates as exhaust emissions.
    (ii) All primary and auxiliary equipment and engines must have 
noemissions of nonmethane hydrocarbons, oxides of nitrogen, 
carbonmonoxide, formaldehyde, and particulates.
    (iii) The vehicle fuel system(s) and any auxiliary engine(s) 
musthave no evaporative emissions.
    (iv) Any auxiliary heater must not operate at ambient 
temperaturesabove 40 degrees Fahrenheit.
    (g) All heavy-duty engines used in low emission, ultra-lowemission, 
or zero emission vehicles shall also comply with allapplicable standards 
and requirements of 40 CFR part 86, except thatany exhaust emission 
standards in 40 CFR part 86 pertaining topollutants for which standards 
are established in this section shallnot apply.

[59 FR 50077, Sept. 30, 1994]



                 Subpart B_California Pilot Test Program



Sec. 88.201-94  Scope.

    Applicability. The requirements of this subpart shall applyto the 
following:
    (a) State Implementation Plan revisions for the State ofCalifornia 
and other states pursuant to compliance with section 249 ofthe Clean Air 
Act, as amended in 1990.
    (b) Vehicle manufacturers with sales in the State of California.

[57 FR 60046, Dec. 17, 1992, as amended at 59 FR 50077, Sept.30, 1994]



Sec. 88.202-94  Definitions.

    (a) The definitions in subpart A also apply to this subpart.
    (b) The definitions in this subpart shall apply beginning with 
the1992 model year.
    Averaging for clean-fuel vehicles means the sale of clean-fuel 
vehicles that meet more stringent standards than required, whichallows 
the manufacturer to sell fewer clean-fuel vehicles than wouldotherwise 
be required.
    Banking means the retention of credits, by the 
manufacturergenerating the emissions credits, for use in future model-
yearcertification as permitted by regulation.
    Sales means vehicles that are produced, sold, anddistributed (in 
accordance with normal business practices andapplicable franchise 
agreements) in the State of California, includingowners of covered 
fleets under subpart C of part 86 of this chapter.The manufacturer can 
choose at their option from one of the followingthree methods for 
determining sales:
    (i) Sales is defined as sales to the ultimate purchaser.
    (ii) Sales is defined as vehicle sales by a manufacturer to adealer, 
distributer, fleet operator, broker, or any other entity whichcomprises 
the first point of sale.
    (iii) Sales is defined as equivalent to the production of 
vehiclesfor the state of California. This option can be revoked if it 
isdetermined that the production and actual sales numbers do not 
exhibita functional equivalence

[[Page 19]]

per the language ofSec. 86.708-94(b)(1) of this chapter.
    Trading means the exchange of credits between manufacturers.



Sec. 88.203-94  Abbreviations.

    The abbreviations in subpart A of this part and in 40 CFR part 
86apply to this subpart.



Sec. 88.204-94  Sales requirements for the California Pilot Test Program.

    (a) The total annual required minimum sales volume of new cleanfuel 
vehicles in California for this program shall correspond to TableB204.
    (b) (1) When manufacturers of vehicles subject to the regulationsof 
this section file a report pursuant to 40 CFR 86.085-37(b),such report 
shall include the following information: the number oflight-duty 
vehicles and light-duty trucks sold only in California, andthe number of 
clean-fuel vehicles sold for the Pilot program beginningwith model year 
1996.
    (2) For model years 1996 and 1997, manufacturers may exclude 
heavylight-duty trucks from the reporting required by this section.
    (c) (1) Except as provided in paragraph (d) of this section, 
eachvehicle manufacturer must sell clean-fuel vehicles in California in 
anamount equal to the required annual sales volume calculated 
inparagraph (c)(2) of this section.
    (2) The required annual clean fuel vehicle sales volume for agiven 
manufacturer is expressed in the following equation rounded tothe 
nearest whole number:
[GRAPHIC] [TIFF OMITTED] TR03JA96.003

Where:

RMS = a manufacturer's required sales in a given model year.
MS = the average of a manufacturer's total LDV and light LDT salesin 
California three and four model years earlier than year in question(for 
MY 1996 and 1997 RMS calculations).
 = the average of a manufacturer's total LDV and LDT salesin California 
three and four model years earlier than year in question(for MY 1998 and 
later RMS calculations).
TS = the average of total LDV and light LDT sales in California ofall 
manufacturers three and four model years earlier than the year 
inquestion (for MY 1996 and 1997 RMS calculations). Sales 
ofmanufacturers which meet the criteria of (d) of this paragraph willnot 
be included.
 = the average of total LDV and LDT sales in California ofall 
manufacturers three and four model years earlier than the year 
inquestion (for MY 1998 and later RMS calculations). Sales 
ofmanufacturers which meet the criteria of (d) of this paragraph willnot 
be included.
TCPPS = Pilot program annual CFV sales requirement (either 150,000or 
300,000) for the model year in question.

    (i) A manufacturer's share of required annual sales for modelyears 
1996 and 1997 will be based on LDV and light LDT sales only.Once the 
heavy LDT standards are effective beginning with model year1998, a 
manufacturer's required sales share will be based on all LDVand LDT 
sales.
    (ii) A manufacturer certifying for the first time in Californiashall 
calculate annual required sales share based on projectedCalifornia sales 
for the model year in question. In the second year,the manufacturer 
shall use actual sales from the previous year. In thethird year, the 
manufacturer will use sales from two model years priorto the year in 
question. In the fourth year, the manufacturer will usesales from three 
years prior to the year in question. In the fifthyear and subsequent 
years, the manufacturer will use average salesfrom three and four years 
prior to the year in question.
    (d) (1) Small volume manufacturer is defined in the Pilot programas 
one whose average annual LDV and LDT sales in California are lessthan or 
equal to 3,000 units during a consecutive three-year periodbeginning no 
earlier than model year 1993.
    (i) A manufacturer with less than three consecutive years of salesin 
California shall use a single year of sales or, if available, theaverage 
of two years of sales in California to determine whether theyfall at or 
below the threshold of 3,000 units.
    (ii) A manufacturer certifying for the first time in Californiashall 
be considered a small volume manufacturer if their projectedCalifornia 
sales level is at or below 3,000 units for a given year.Once the 
manufacturer has actual sales data for one year, this actualsales

[[Page 20]]

data shall be used to determine whether the manufacturerqualifies as a 
small volume manufacturer.
    (iii) A manufacturer which does not qualify as a small 
volumemanufacturer in model year 1996 but whose average annual LDV and 
LDTsales fall to or below the 3,000 unit threshold between 1996 and 
2001shall be treated as a small volume manufacturer and shall be 
subjectto requirements for small volume manufacturers as specified 
inparagraph (d)(2) of this section beginning with the next model year.
    (2) A manufacturer which qualifies as a small volume 
manufacturerprior to model year 2001 is not required to comply with the 
salesrequirements of this section until model year 2001.

             Table B204--Pilot Program Vehicle SalesSchedule
------------------------------------------------------------------------
                                                                Required
             Model years                   Vehicle types         annual
                                                                 sales
------------------------------------------------------------------------
1996 and 1997.......................  LDTs (<6000 GVWR and       150,000
                                       <=5750 LVW); andLDVs.
1998................................  All Applicable Vehicle     150,000
                                       Types.
1999+...............................  All Applicable Vehicle     300,000
                                       Types.
------------------------------------------------------------------------


[59 FR 50078, Sept. 30, 1994, as amended at 61 FR 127, Jan. 3,1996]



Sec. 88.205-94  California Pilot Test Program Credits Program.

    (a) General. (1) The Administrator shall administer thiscredit 
program to enable vehicle manufacturers who are required toparticipate 
in the California Pilot Test Program to meet the clean-fuel vehicle 
sales requirements through the use of credits.Participation in this 
credit program is voluntary.
    (2) All credit-generating vehicles must meet the applicableemission 
standards and other requirements contained in subpart A ofthis part.
    (b) Credit generation. (1) Credits may be generated by anyof the 
following means:
    (i) Sale of qualifying clean-fuel vehicles earlier than 
required.Manufacturers may earn these credits starting with the 1992 
modelyear, contingent upon the requirements of paragraph (g) of 
thissection.
    (ii) Sale of a greater number of qualifying clean-fuel vehiclesthan 
required.
    (iii) Sale of qualifying clean-fuel vehicles that meet morestringent 
emission standards than those required.
    (2) For light-duty vehicles and light-duty trucks, credit 
valuesshall be determined in accordance with the following:
    (i) For model-years through 2000, credit values shall bedetermined 
in accordance with table B-1 of this subpart.
    (ii) For the 2001 and subsequent model-years, credit values shallbe 
determined according to table B-2 of this subpart. The saleof light-duty 
vehicles classified as Transitional Low-EmissionVehicles shall not 
receive credits starting in model year 2001.
    (iii) For the calculation of credits for the sale of more clean-fuel 
vehicles than required, the manufacturer shall designate whichsold 
vehicles count toward compliance with the sales requirement. 
Theremaining balance of vehicles will be considered as sold beyond 
thesales requirement for credit calculations.
    (3) Vehicles greater than 8500 lbs gvwr may not generate credits.
    (c) Credit use. (1) All credits generated in accordance withthese 
provisions may be freely averaged, traded, or banked for lateruse. 
Credits may not be used to remedy any nonconformity determined 
byenforcement testing.
    (2) There is one averaging and trading group containing all light-
duty vehicles and light-duty trucks.
    (3) A vehicle manufacturer desiring to demonstrate full or 
partialcompliance with the sales requirements by the redemption of 
credits,shall surrender sufficient credits, as established in this 
paragraph(c). In lieu of selling a clean-fuel vehicle, a manufacturer 
shallsurrender credits equal to the credit value for the 
correspondingvehicle class and model year found in table B-1.3 or 
tableB-2.3 of this subpart.
    (d) Participation in the credit program. (1) Duringcertification, 
the manufacturer shall calculate the projected credits,if any, based on 
required sales projections.
    (2) Based on information from paragraph (d)(1) of this section,each 
manufacturer's certification application under this section 
mustdemonstrate:

[[Page 21]]

    (i) That at the end of the model-year production, there is anet 
vehicle credit balance of zero or more with any credits obtainedfrom 
averaging, trading, or banking.
    (ii) It is recommended but not required that the source of 
thecredits to be used to comply with the minimum sales requirements 
bestated. All such reports should include all credits involved 
inaveraging, trading, or banking.
    (3) During the model year, manufacturers must:
    (i) Monitor projected versus actual production to be certain 
thatcompliance with the sales requirement is achieved at the end of 
themodel year.
    (ii) Provide the end of model year reports required under 
thissubpart.
    (iii) Maintain the records required under this subpart.
    (4) Projected credits based on information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such credits may be revoked based on reviewof 
end-of-model year reports, follow-up audits, and any otherverification 
steps deemed appropriate by the Administrator.
    (5) Compliance under averaging, banking, and trading will 
bedetermined at the end of the model year.
    (6) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end-of-year report previously submitted to EPA 
underthis section, the manufacturer's credits and credit calculations 
willbe recalculated.
    (i) If EPA review of a manufacturer's end-of-year report indicatesan 
inadvertent credit shortfall, the manufacturer will be permitted 
topurchase the necessary credits to bring the credit balance to zero.
    (ii) If within 90 days of receipt of the manufacturer's end-of-year 
report, EPA review determines a reporting error in themanufacturer's 
favor (i.e., resulting in a positive credit balance) orif the 
manufacturer discovers such an error within 90 days of EPAreceipt of the 
end-of-year report, the credits will be restored foruse by the 
manufacturer.
    (e) Averaging. Averaging will only be allowed between clean-fuel 
vehicles under 8500 lbs gvwr.
    (f) Banking--(1) Credit deposits. (i) Under thisprogram, credits can 
be banked starting in the 1992 model year.
    (ii) A manufacturer may bank credits only after the end of themodel 
year and after EPA has reviewed its end-of-year report. Duringthe model 
year and before submittal of the end-of-year report, creditsoriginally 
designated in the certification process for banking will beconsidered 
reserved and may be redesignated for trading or averaging.
    (2) Credit withdraws. (i) After being generated,banked/reserved 
credits shall be available for use and shall maintaintheir original 
value for an infinite period of time.
    (ii) A manufacturer withdrawing banked credits shall indicate 
soduring certification and in its credit reports.
    (3) Banked credits may be used in averaging, trading, or in 
anycombination thereof, during the certification period. Credits 
declaredfor banking from the previous model year but unreviewed by EPA 
mayalso be used. However, they may be revoked at a later time 
followingEPA review of the end-of-year report or any subsequent audit 
actions.
    (g) Early credits. Beginning in model year 1992 appropriatecredits, 
as determined from the given credit table, will be given forthe sale of 
vehicles certified to the clean-fuel vehicle standards forTLEVs, LEVs, 
ULEVs, and ZEVs, where appropriate. For LDVs and lightLDTs (<6000 lbs 
GVWR), early credits can be earned from model year1992 to the beginning 
of the Pilot Program sales requirements in 1996.For heavy LDTs 
(6000 lbs GVWR), early credits can be earned frommodel years 
1992 through 1997. The actual calculation of early creditsshall not 
begin until model year 1996.

[57 FR 60046, Dec. 17, 1992, as amended at 61 FR 127, Jan. 3,1996]



Sec. 88.206-94  State opt-in for the California Pilot Test Program.

    (a) A state may opt into the Pilot program if it contains all orpart 
of an ozone nonattainment area classified as serious, severe, orextreme 
under subpart D of Title I.
    (b) A state may opt into the program by submitting SIP revisionsthat 
meet the requirements of this section.

[[Page 22]]

    (c) For a state that chooses to opt in, SIP provisions can nottake 
effect until one year after the state has provided notice to ofsuch 
provisions to motor vehicle manufacturers and fuel suppliers.
    (d) A state that chooses to opt into the program can not require 
asales or production mandate for CFVs or clean alternative fuels.States 
may not subject fuel or vehicle suppliers to penalties orsanctions for 
failing to produce or sell CFVs or clean alternativefuels.
    (e) (1) A state's SIP may include incentives for the sale or usein 
such state of CFVs required in California by the Clean Fuel 
FleetProgram, and the use of clean alternative fuels required to be 
madeavailable in California by the California Pilot Program.
    (2) Incentives may include:
    (i) A registration fee on non-CFVs of at least 1 percent of thetotal 
cost of the vehicle. These fees shall be used to:
    (A) Provide financial incentives to purchasers of CFVs and 
vehicledealers who sell high volumes or high percentages of CFVs.
    (B) Defray administrative costs of the incentive program.
    (ii) Exemptions for CFVs from high occupancy vehicle or 
tripreduction requirements.
    (iii) Preferences for CFVs in the use of existing parking places.

[59 FR 50078, Sept. 30, 1994]



                   Sec. Tables to Subpart B of Part 88

       Table B-1--Credit Tablefor Phase I Vehicle Equivalents for Light-Duty Vehicles and Light-DutyTrucks
                  Table B-1.1--Credit Generation: SellingMore Clean-Fuel Vehicles Than Required
                                   [Phase I: Effective Through2000 Model-Year]
----------------------------------------------------------------------------------------------------------------
                                                                                LDT <=6000 gvwr
                                    LDV &LDT    LDT  <=6000 gvwr   LDT  <=6000      3750lvw      gvwr       eq>3750 alvw       5750 alvw
 
----------------------------------------------------------------------------------------------------------------
TLEV............................         1.00             1.28           (\1\)          (\1\)            (\1\)
LEV.............................         1.40             1.76            1.00           1.28             1.56
ULEV............................         1.68             2.16            1.40           1.76             2.18
ZEV.............................         2.00             2.56            2.00           2.56             3.12
----------------------------------------------------------------------------------------------------------------


                    Table B-1.2--CreditGeneration: Selling More Stringent Clean Fuel Vehicles
----------------------------------------------------------------------------------------------------------------
                                                                                     LDT  6000 gvwr   LDT  <=6000
         Vehicleemission  category           <=6000 gvwr      gvwr         gvwr        <=3750alvw        gvwr
                                              <=3750 lvw   <=3750 lvw  <=3750 alvw    <=5750 alvw    <=5750 alvw
                                                           <=5750 lvw
----------------------------------------------------------------------------------------------------------------
TLEV.......................................         0.00         0.00        (\1\)          (\1\)          (\1\)
LEV........................................          .40          .48         0.00           0.00           0.00
ULEV.......................................          .68          .88          .40            .48            .62
ZEV........................................         1.00         1.28         1.00           1.28           1.56
----------------------------------------------------------------------------------------------------------------


                         Table B-1.3--Credit Neededin Lieu of Selling Clean-Fuel Vehicle
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 gvwr    LDT  6000 gvwr   3750    eq>6000 gvwr
     Vehicle emission  category      <=6000 gvwr   <=3750 lvw    <=3750 alvw          alvw       5750
                                      <=3750 lvw   <=5750 lvw                      <=5750alvw          alvw
 
----------------------------------------------------------------------------------------------------------------
TLEV...............................         1.00         1.28          (\1\)            (\1\)            (\1\)
LEV................................  ...........  ...........           1.00             1.28             1.56
----------------------------------------------------------------------------------------------------------------
\1\ There is no TLEV category for this vehicle class.


[[Page 23]]


      Table B-2--CreditTable for Phase II: Vehicle Equivalents for Light-Duty Vehicles andLight-Duty Trucks
                  Table B-2.1--Credit Generation:Selling More Clean-Fuel Vehicles Than Required
                              [Phase II:effective 2001 and subsequent model-years]
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 gvwr    LDT  6000 gvwr
                                          <=3750 lvw   <=3750 lvw  <=3750 alvw    <=5750 alvw      <=5750 alvw
                                                       <=5750 lvw
----------------------------------------------------------------------------------------------------------------
LEV....................................         1.00         1.26         0.71           0.91             1.11
ULEV...................................         1.20         1.54         1.00           1.26             1.56
ZEV....................................         1.43         1.83         1.43           1.83             2.23
----------------------------------------------------------------------------------------------------------------


                    Table B-2.2--CreditGeneration: Selling More Stringent Clean-Fuel Vehicles
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 gvwr     eq>6000 gvwr
       Vehicleemission  category         <=6000 gvwr      gvwr         gvwr        <=3750alvw    5750
                                          <=3750 lvw   <=3750 lvw  <=3750 alvw    <=5750 alvw          alvw
                                                       <=5750 lvw
----------------------------------------------------------------------------------------------------------------
LEV....................................         0.00         0.00         0.00           0.00             0.00
ULEV...................................          .20          .28          .29            .34              .45
ZEV....................................          .43          .57          .71            .91             1.11
----------------------------------------------------------------------------------------------------------------


                        Table B-2.3--Credit Neededin Lieu of Selling Clean-Fuel Vehicles
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 gvwr    LDT  6000 gvwr   3750    eq>6000 gvwr
   Vehicle emission category     <=6000 gvwr    eq>3750 lvw      <=3750 alvw          alvw       5750
                                  <=3750 lvw     <=5750 lvw                        <=5750alvw          alvw
 
----------------------------------------------------------------------------------------------------------------
LEV............................         1.00           1.26             0.71             0.91             1.11
----------------------------------------------------------------------------------------------------------------


[59 FR 50079, Sept. 30, 1994]



                   Subpart C_Clean-Fuel Fleet Program

    Source: 58 FR 11901, Mar. 1, 1993, unless otherwisenoted.



Sec. 88.301-93  General applicability.

    (a) The requirements of this subpart apply to the following:
    (1) State Implementation Plan revisions at 40 CFR part 52 
madepursuant to sections 110 and 246 of the CAA (42 U.S.C. 7410 and 
7586)hereafter referred to as the ``SIP revision''.
    (2) All agencies, departments and instrumentalities of the 
UnitedStates that are subject to the fleet programs established by a 
state'sSIP revision.
    (b) The requirements of Sec. Sec. 88.302-93,88.303-93, 88.311-93, 
88.312-93, and88.313-93 of this part apply to fleets which 
voluntarilypurchase and operate Inherently Low-Emission Vehicles 
(ILEVs).
    (c) References in this subpart to engine families and 
emissioncontrol systems shall be deemed to refer to durability groups 
and testgroups as applicable for manufacturers certifying new light-
dutyvehicles and light-duty trucks under the provisions of 40 CFR part 
86,subpart S.

[58 FR 11901, Mar. 1, 1993, as amended at 64 FR 23973, May 4,1999]



Sec. 88.302-93  Definitions.

    The definitions in 40 CFR part 86 of this chapter also apply tothis 
subpart. The definitions in this section apply to this subpart.
    Combination heavy-duty vehicle means a vehicle with a GVWRgreater 
than 8,500 pounds (3,900 kilograms) which is comprised of atruck-tractor 
and one or more pieces of trailered equipment. Thetruck-tractor is a 
self-propelled motor vehicle built on one chassiswhich encompasses the 
engine, passenger compartment, and a means ofcoupling to a cargo 
carrying trailer(s). The truck-tractor itself isnot designed to carry 
cargo.
    Inherently Low-Emission Vehicle means any LDV or LDTconforming to

[[Page 24]]

the applicable Inherently Low-Emission Vehiclestandard, or any HDV with 
an engine conforming to the applicableInherently Low-Emission Vehicle 
standard. No dual-fuel or flexible-fuel vehicles shall be considered 
Inherently Low-Emission Vehiclesunless they are certified to the 
applicable standard(s) on all fueltypes for which they are designed to 
operate.
    Partially-Covered Fleet pertains to a vehicle fleet in acovered area 
which contains both covered fleet vehicles and non-covered fleet 
vehicles, i.e., exempt from covered fleet purchaserequirements.
    Single-unit heavy-duty vehicle means a self-propelled motorvehicle 
with a GVWR greater than 8,500 pounds (3,900 kilograms) builton one 
chassis which encompasses the engine, passenger compartment,and cargo 
carrying function, and not coupled to trailered equipment.All buses, 
whether or not they are articulated, are considered single-unit 
vehicles.



Sec. 88.302-94  Definitions.

    The definitions in Sec. 88.302-93 and 40 CFR part86 also apply to 
this part. All terms used in this part, but notdefined in this section 
or in Sec. 88.302-93 and 40CFR part 86 shall have the meaning assigned 
to them in the Clean AirAct.
    Can be centrally fueled means the sum of those vehicles thatare 
centrally fueled and those vehicles that are capable of beingcentrally 
fueled.
    (1) Capable of being centrally fueled means a fleet, or thatpart of 
a fleet, consisting of vehicles that could be refueled 100percent of the 
time at a location that is owned, operated, orcontrolled by the covered 
fleet operator, or is under contract withthe covered fleet operator. The 
fact that one or more vehicles in afleet is/are not capable of being 
centrally fueled does not exempt anentire fleet from the program.
    (2) Centrally fueled means a fleet, or that part of a 
fleet,consisting of vehicles that are fueled 100 percent of the time at 
alocation that is owned, operated, or controlled by the covered 
fleetoperator, or is under contract with the covered fleet operator. 
Anyvehicle that is under normal operations garaged at home at night 
butthat is, in fact, centrally fueled 100 percent of the time shall 
beconsidered to be centrally fueled for the purpose of this 
definition.The fact that one or more vehicles in a fleet is/are not 
centrallyfueled does not exempt an entire fleet from the program. The 
fact thata vehicle is not centrally fueled does not mean it could not 
becentrally fueled in accordance with the definition of ``capableof 
being centrally fueled.''
    (3) Location means any building, structure, facility, orinstallation 
which; is owned or operated by a person, or is under thecontrol of a 
person; is located on one or more contiguous propertiesand contains or 
could contain a fueling pump or pumps for the use ofthe vehicles owned 
or controlled by that person.
    Clean-fuel vehicle aftermarket conversion certifier meansthe 
business or entity that obtains a certificate of conformity withthe 
clean-fuel vehicle standards and requirements for a vehicle/
engineconversion configuration pursuant to the requirements of 40 CFR 
part86 and this part 88.
    Control means: (1) When it is used to join all entitiesunder common 
management, means any one or a combination of thefollowing:
    (i) A third person or firm has equity ownership of 51 percent ormore 
in each of two or more firms;
    (ii) Two or more firms have common corporate officers, in whole orin 
substantial part, who are responsible for the day-to-day operationof the 
companies.
    (iii) One firm leases, operates, supervises, or in 51 percent 
orgreater part owns equipment and/or facilities used by another personor 
firm, or has equity ownership of 51 percent or more of anotherfirm.
    (2) When it is used to refer to the management of vehicles, meansa 
person has the authority to decide who can operate a particularvehicle, 
and the purposes for which the vehicle can be operated.
    (3) When it is used to refer to the management of people, means 
aperson has the authority to direct the activities of another person 
oremployee in a precise situation, such as at the workplace.

[[Page 25]]

    Conversion configuration means any combination ofvehicle/engine 
conversion hardware and a base vehicle of a specificengine family.
    Covered fleet operator means a person who operates a fleetof at 
least ten covered fleet vehicles (as defined in section 241(6)of the 
Act) and that fleet is operated in a single covered area (evenif the 
covered fleet vehicles are garaged outside of it). For purposesof this 
definition, the vehicle types described in the definition ofcovered 
fleet (section 241(5) of the Act) as exempt from theprogram will not be 
counted toward the ten-vehicle criterion.
    Dealer demonstration vehicle means any vehicle that isoperated by a 
motor vehicle dealer (as defined in section 216(4) ofthe Act) solely for 
the purpose of promoting motor vehicle sales,either on the sales lot or 
through other marketing or salespromotions, or for permitting potential 
purchasers to drive thevehicle for pre-purchase or pre-lease evaluation.
    Emergency vehicle means any vehicle that is legallyauthorized by a 
governmental authority to exceed the speed limit totransport people and 
equipment to and from situations in which speedis required to save lives 
or property, such as a rescue vehicle, firetruck, or ambulance.
    Law enforcement vehicle means any vehicle which is primarilyoperated 
by a civilian or military police officer or sheriff, or bypersonnel of 
the Federal Bureau of Investigation, the Drug EnforcementAdministration, 
or other agencies of the federal government, or bystate highway patrols, 
municipal law enforcement, or other similar lawenforcement agencies, and 
which is used for the purpose of lawenforcement activities including, 
but not limited to, chase,apprehension, surveillance, or patrol of 
people engaged in orpotentially engaged in unlawful activities. For 
federal lawenforcement vehicles, the definition contained in Executive 
Order12759, Section 11: Alternative Fueled Vehicle for the Federal 
Fleet,Guidance Document for Federal Agencies, shall apply.
    Model year, as it applies to the clean fuel vehicle fleetpurchase 
requirements, means September 1 through August 31.
    Motor vehicles held for lease or rental to the generalpublic means a 
vehicle that is owned or controlled primarily forthe purpose of short-
term rental or extended-term leasing (with orwithout maintenance), 
without a driver, pursuant to a contract.
    New covered fleet vehicle means a vehicle that has not 
beenpreviously controlled by the current purchaser, regardless of 
themodel year, except as follows: Vehicles that were manufactured 
beforethe start of the fleet program for such vehicle's weight 
class,vehicles transferred due to the purchase of a company not 
previouslycontrolled by the purchaser or due to a consolidation of 
businessoperations, vehicles transferred as part of an employee 
transfer, orvehicles transferred for seasonal requirements (i.e., for 
less than120 days) are not considered new. States are permitted to 
discontinuethe use of the fourth exception for fleet operators who abuse 
thediscretion afforded them. This definition of new covered fleet 
vehicleis distinct from the definition of new vehicle as it applies 
tomanufacturer certification, including the certification of vehicles 
tothe clean fuel standards.
    Owned or operated, leased or otherwise controlled by suchperson 
means either of the following:
    (1) Such person holds the beneficial title to such vehicle; or
    (2) Such person uses the vehicle for transportation purposespursuant 
to a contract or similar arrangement, the term of suchcontract or 
similar arrangement is for a period of 120 days or more,and such person 
has control over the vehicle pursuant to thedefinition of control of 
this section.
    Person includes an individual, corporation, partnership,association, 
State, municipality, political subdivision of a State,and any agency, 
department, or instrumentality of the United Statesand any officer, 
agent, or employee thereof.
    Under normal circumstances garaged at personal residencemeans a 
vehicle that, when it is not in use, is normally parked at thepersonal 
residence of the individual who usually operates it, ratherthan at a 
central refueling, maintenance, and/or business location.Such vehicles 
are not considered to be

[[Page 26]]

capable of being centralfueled (as defined in this subpart) and are 
exempt from the programunless they are, in fact, centrally fueled.
    Vehicle used for motor vehicle manufacturer product evaluationsand 
tests means a vehicle that is owned and operated by a motorvehicle 
manufacturer (as defined in section 216(1) of the Act), ormotor vehicle 
component manufacturer, or owned or held by a universityresearch 
department, independent testing laboratory, or other suchevaluation 
facility, solely for the purpose of evaluating theperformance of such 
vehicle for engineering, research and development,or quality control 
reasons.

[58 FR 64691, Dec. 9, 1993, as amended at 59 FR 50080, Sept.30, 1994]



Sec. 88.303-93  Abbreviations.

    The abbreviations in subpart A of this part and in 40 CFR part 
86apply to this subpart. The abbreviations in this section apply to 
thissubpart.

    ILEV--Inherently Low-Emission Vehicle.



Sec. 88.304-94  Clean-fuel Fleet Vehicle Credit Program.

    (a) General. (1) The SIP revision shall provide for a CFFVcredit 
program to enable covered fleet owners/operators to meet thefleet 
vehicle purchase requirements of the CAA both by purchasingclean-fuel 
vehicles (CFVs) directly and by trading and banking CFFVcredits for 
vehicle purchases.
    (2) All credit-generating vehicles must meet the applicableemission 
standards and other requirements contained in 40 CFR part 88,subpart A.
    (b) Program administration. (1)(i) Each state in which thereis all 
or part of a covered area, as defined in CAA section 246(a)(2),shall 
promulgate regulations as necessary for implementing thisrequirement.
    (ii) The state shall submit a SIP revision before May 15, 1994 tothe 
Administrator stipulating the specific mechanism by which the 
CFFVprogram is to be administered and enforced. The credit program 
shallcommence upon EPA approval of the SIP in accordance with CAA 
section246(f)(5).
    (2) A fleet owner who purchases/leases a CFFV only to generateCFFV 
credit shall be subject to the same requirements of the state'sCFFV 
program as a covered fleet owner who purchases/leases a CFFV 
todemonstrate compliance with covered fleet purchase requirements.
    (3) While in the covered area, a dual-fuel/flexible-fuel 
vehiclewhich a fleet owner purchases to comply with covered fleet 
purchaserequirements must be operated at all times on the fuel(s) on 
which itwas certified as a CFFV. If the fleet owner receives credit for 
adual-fuel/flexible-fuel vehicle purchase, the vehicle must be 
operatedat the same emission level for which the vehicle generated 
CFFVcredit.
    (c) Credit generation. (1) States shall grant CFFV creditsto a 
covered fleet owner for any of the following qualifying CFFVpurchases:
    (i) Purchase of a CFFV during any period subsequent to theapproval 
of the SIP revision but prior to the effective date forcommencement of a 
state's CFFV purchase requirement if the purchasemeets all other CFFV 
requirements applicable to such purchases,including the statutory 
requirement to use only the fuel on which thevehicle was certified as a 
CFFV;
    (ii) Purchase of a greater number of CFFVs than is required underthe 
SIP revision;
    (iii) Purchase of a CFFV which meets more stringent 
emissionstandards than required under the SIP revision; or
    (iv) Purchase of a CFFV in an exempt or non-covered vehiclecategory 
by the owner/operator of a covered or partially-coveredfleet.
    (2) A state may retroactively grant CFFV credit(s) to a fleetowner 
for the purchase of a CFFV prior to the approval of the state'sSIP 
revision if the purchase met all CFFV credit program 
requirementsapplicable to such purchases, including:
    (i) The vehicle purchased would have to have been certified toCFFV 
emission standards;
    (ii) The vehicle purchased would have to have been a dedicated-fuel 
vehicle;
    (iii) If the vehicle purchased was not a dedicated-fuel vehicle,then 
the fleet owner would have to show that the vehicle had beenoperated 
only on the

[[Page 27]]

clean alternative fuel on which the vehiclehad been certified as a CFFV.
    (3) For LDVs and LDTs, credit values shall be determined 
inaccordance with Table C94-1. The state shall use TableC94-1 
exclusively in determining LDV and LDT CFFV creditvalues. Table C94-1.1 
applies to paragraphs (c)(1) (i), (ii)and (iv) of this section; Table 
C94-1.2 applies to paragraph(c)(1)(iii) of this section.
    (4) In lieu of determining credit values in accordance with 
TableC94-1, a state may specify in its SIP revision that TableC94-2 will 
be used to determine LDV and LDT CFFV credit valuesin one or more 
affected nonattainment areas. Any state choosing to doso must provide 
adequate justification, based on air quality benefits,at the time the 
SIP revision is submitted. If the use of TableC94-2 is approved by EPA, 
the State shall use TableC94-2 exclusively in determining LDV and LDT 
CFFV credit valuesfor vehicles in the subject area or areas. Table C94-
2.1applies to paragraphs (b)(1) (i), (ii) and (iv) of this section; 
TableC94-2.2 applies to paragraph (b)(1)(iii) of this section.
    (5) In lieu of determining credit values in accordance with 
TableC94-1, a state containing a carbon monoxide nonattainmentarea(s) 
having a design value above 16.0 parts per million may specifyin its SIP 
revision that Table C94-3 will be used to determineLDV and LDT CFFV 
credit values in one or more affected nonattainmentareas. Any state 
choosing to do so must provide adequatejustification, based on air 
quality benefits, at the time the SIPrevision is submitted. If the use 
of Table C94-3 is approved byEPA, the state shall use Table C94-3 
exclusively in determiningLDV and LDT CFFV credit values for vehicles in 
the subject area orareas. Table C94-3.1 applies to paragraphs (b)(1) 
(i), (ii) and(iv) of this section; Table C94-3.2 applies to paragraph 
(b)(1)(iii) of this section.
    (6) For HDVs, credit values shall be determined in accordance 
withTable C94-4. The state shall use Table C94-4 exclusivelyin 
determining heavy-duty vehicle CFFV credit values. TableC94-4.1 applies 
to paragraphs (c)(1) (i), (ii) and (iv) of thissection, and Table C94-
4.2 applies to paragraph (c)(1)(iii) ofthis section.
    (7) In lieu of determining credit values in accordance with 
TableC94-4, a state containing a carbon monoxide nonattainmentarea(s) 
having a design value above 16 parts per million may specifyin its SIP 
revision that Table C94-5 will be used to determineheavy-duty vehicle 
CFFV credit values in one or more affectednonattainment areas. Any state 
choosing to do so must provide adequatejustification, based on air 
quality benefits, at the time the SIPrevision is submitted. If the use 
of Table C94-5 is approved byEPA, the State shall use Table C94-5 
exclusively in determiningheavy-duty vehicle CFFV credit values for 
vehicles in the subject areaor areas. Table C94-5.1 applies to 
paragraphs (b)(1) (i), (ii)and (iv) of this section; Table C94-5.2 
applies to paragraph(b)(1)(iii) of this section.
    (8) Credit values shall be rounded to two decimal places.
    (9) Heavy heavy-duty vehicles. (i) States must allowpurchase of any 
clean-fuel single-unit or combination HDV with a GVWRgreater than 26,000 
pounds (11,800 kilograms) to generate CFFV creditfor the fleet vehicle 
purchaser.
    (ii) States must exclude from generating CFFV credit the purchaseof 
any combination HDV with a GVWR greater than 26,000 pounds 
(11,800kilograms) which pays all or a portion of its fuel taxes, as 
evidencedby fuel tax stickers on the combination HDV, to a state(s) 
which isnot part of that covered nonattainment area.
    (10) Light-duty CFFV credits. Credits generated by thepurchase of a 
qualifying clean-fuel fleet LDV or a LDT shall bedesignated at the time 
of issuance as light-duty CFFV credits.
    (11) Heavy-duty CFFV credits. Credits generated by thepurchase of a 
qualifying clean-fuel fleet HDV shall be designated atthe time of 
issuance as heavy-duty CFFV credits. Further, creditsgenerated by the 
purchase of a light heavy-duty or a medium heavy-dutyqualifying CFFV 
shall be designated at the time of issuance as lightheavy-duty and 
medium heavy-duty CFFV credits, respectively.

[[Page 28]]

    (d) Credit use. (1) All credits generated in accordancewith these 
provisions may be freely traded or banked for later use,subject to the 
provisions contained in this subpart, without discountor depreciation of 
such credits.
    (2) A covered fleet owner or operator desiring to demonstrate fullor 
partial compliance with covered fleet purchase requirements by 
theredemption of credits shall surrender sufficient credits 
asestablished in this paragraph. In lieu of purchasing a CFFV, a 
fleetowner or operator shall surrender credits equal to the credit 
valuefor the corresponding vehicle class and credit calculation method 
usedin that area from either Table C94-1.3, C94-2.3,C94-3.3, C94-4.3, or 
C94-5.3 of this subpart.
    (3) Credits earned within the boundaries of a coverednonattainment 
area may be traded within those boundaries whether ornot that area 
encompasses parts of more than one state.
    (4) Credits issued as a result of CFFV purchase requirements inone 
nonattainment area may not be used to demonstrate compliance inanother 
nonattainment area, even if a state contains more than onecovered 
nonattainment area.
    (5) Credit allocation. (i) Credits generated by the purchase ofLDVs 
and LDTs of 8,500 pounds (3,900 kilograms) GVWR or less may beused to 
demonstrate compliance with covered fleet purchaserequirements 
applicable to LDVs or LDTs of 8,500 pounds (3,900kilograms) GVWR or 
less.
    (ii) Credits generated by the purchase of vehicles of more than8,500 
pounds (3,900 kilograms) GVWR may not be used to demonstratecompliance 
with the covered fleet purchase requirements for vehiclesweighing 8,500 
pounds (3,900 kilograms) GVWR or less.
    (iii) Credits generated by the purchase of vehicles of 8,500pounds 
(3,900 kilograms) GVWR or less may not be used to demonstratecompliance 
with requirements for vehicles of more than 8,500 pounds(3,900 
kilograms) GVWR.
    (iv) Credits generated by the purchase of a HDV of a 
particularweight subclass may be used to demonstrate compliance with 
requiredheavy-duty vehicle purchases for the same or lighter 
weightsubclasses. These credits may not be used to demonstrate 
compliancewith required HDV purchases for vehicles of heavier weight 
subclassesthan the weight subclass of the vehicle which generated the 
credits.



Sec. 88.305-94  Clean-fuel fleet vehicle labeling requirements for heavy-dutyvehicles.

    (a) All clean-fuel heavy-duty engines and vehicles used as 
LEVs,ULEVs, and ZEVs that are also regulated under 40 CFR part 86 
shallcomply with the labeling requirements of 40 CFR 86.095-35 (orlater 
applicable sections), and shall also include an unconditionalstatement 
on the label indicating that the engine or vehicle is a LEV,ULEV, or 
ZEV, and meets all of the applicable requirements of thispart 88.
    (b) All heavy-duty clean-fuel fleet vehicles not regulated under40 
CFR part 86 shall have a permanent legible label affixed to theengine or 
vehicle in a readily visible location, which contains thefollowing 
information:
    (1) The label heading: vehicle emissions classificationinformation 
(e.g., ``This is a Low Emission Vehicle'');
    (2) Full corporate name and trademark of the manufacturer;
    (3) A statement that this engine or vehicle meets all 
applicablerequirements of the U.S. Environmental Protection Agency 
clean-fuelfleet vehicle program, as described in this part 88, but 
notnecessarily those requirements found in 40 CFR part 86.

[59 FR 50080, Sept. 30, 1994]



Sec. 88.306-94  Requirements for a converted vehicle to qualify as a clean-fuelfleet vehicle.

    (a) For purposes of meeting the requirements of section 246 of 
theClean Air Act or the SIP revisions, conversions of engines or 
vehicleswhich satisfy the requirements of this section shall be treated 
as apurchase of a clean-fuel vehicle under subpart C of this part.
    (b) The engine or vehicle must be converted using a 
conversionconfiguration which has been certified according to the 
provisions of40 CFR part 86 using applicable emission standards and 
otherprovisions from part 88 for clean-fuel engines and vehicles. 
Thefollowing requirements will also apply:

[[Page 29]]

    (1) If the installation of the certified conversionconfiguration is 
performed by an entity other than aftermarketconversion certifier, the 
aftermarket conversion certifier shallsubmit a list of such installers 
to the Administrator. Additionalinstallers must be added to this list 
and the revised list submittedto the Administrator within 5 working days 
from the time they areauthorized to perform conversion installations by 
the clean-fuelvehicle aftermarket conversion certifier.
    (2) If the installation of the certified conversion configurationis 
performed by an entity other than the certificate holder, thecertificate 
holder shall provide instructions for installation of theaftermarket 
conversion system to installers listed on the certificate,and ensure 
that the systems are properly installed.
    (3) For the purpose of determining whether certification under 
theSmall-Volume Manufacturers Certification Program pursuant to 
therequirements of 40 CFR 86.094-14 is permitted, the 10,000 salesvolume 
limit in 40 CFR 86.094-14(b)(1) is waived for acertifier of a clean-fuel 
vehicle aftermarket conversion.
    (4) Clean-fuel vehicle aftermarket conversion certifiers that 
aresubject to the post-installation emissions testing requirements 
inparagraph (c) of this section and who will satisfy these 
requirementsby using the two speed idle test procedure detailed in 
paragraph (c)(2)(ii) of this section must conduct the following testing 
at the timeof certification in order to generate the required 
certification COemissions reference values. The certification CO 
emissions referencevalues generated must be submitted to the 
Administrator at the time ofapplication for certification.
    (i) For dual and flexible fuel vehicles, certification 
referencevalues must be generated for each certification test fuel 
required forexhaust emissions testing pursuant to 40 CFR 86.113 or 40 
CFR 86.1313.
    (ii) For light-duty vehicles and light-duty trucks the test 
fuelsused during the emissions testing required by paragraph (b)(3) of 
thissection must comply with the fuel specifications for exhaust 
emissionstesting found in 40 CFR 86.113. For heavy-duty engines the test 
fuelsused during the emissions testing required by paragraph (b)(3) of 
thissection must comply with the fuel specifications for exhaust 
emissionstesting found in 40 CFR 86.1313.
    (iii) Single, consecutive idle mode and high-speed mode segmentsof 
the two speed idle test must be conducted pursuant to therequirements of 
40 CFR 85.2215 and as modified by the provisions ofparagraph 
(c)(4)(ii)(D) of this section and this paragraph todetermine the 
required certification CO emission reference values.
    (A) The certification CO emission reference value for the idlemode 
of the test will be the simple average of all emissionsmeasurements 
taken during an idle mode of 90 seconds duration pursuantto the 
requirements in 40 CFR 85.2215(a).
    (B) The certification CO emission reference value for the high-speed 
mode of the test will be the simple average of all emissionsmeasurements 
taken during a high-speed mode of 180 seconds durationpursuant to the 
requirements in 40 CFR 85.2215(a).
    (c) Except as provided in paragraph (c)(1) of this section, 
eachconverted vehicle manufactured by a clean-fuel vehicle 
aftermarketconversion certifier with aggregate sales of less than 
10,000converted vehicles within a given calendar year must satisfy the 
post-installation emissions testing requirements of paragraph (c)(2) 
ofthis section. If a vehicle fails to satisfy the emissions 
testingrequirements such vehicle may not be considered a clean- fuel 
vehicleuntil such noncompliance is rectified and compliance is 
demonstrated.
    (1) A clean-fuel vehicle aftermarket conversion certifier 
withestimated sales of 300 or fewer engines and vehicles in a 
calendaryear and which sells or converts vehicles outside of a non-
attainmentarea (as classified under subpart D of Title I) which has 
aninspection and maintenance program that includes a test of 
carbonmonoxide emissions may submit a request to the Administrator for 
anexemption from the post-installation emission test requirements 
ofparagraph (c) of this section. If granted, such an exemption 
wouldapply to converted vehicles that

[[Page 30]]

have the conversion installationperformed outside of a nonattainment 
area which has an inspection andmaintenance program that includes a test 
of carbon monoxide emissions.
    (i) The request for exemption submitted to the Administrator 
mustinclude the following:
    (A) The estimated number of engines and vehicles that will 
beconverted in the calendar year.
    (B) Sufficient information to demonstrate that complying with 
thepost-installation emission test requirement represents a 
severefinancial hardship.
    (C) A description of any emission related quality controlprocedures 
used.
    (ii) Within 120 days of receipt of the application for exemption,the 
Administrator will notify the applicant either that an exemptionis 
granted or that sufficient cause for an exemption has not 
beendemonstrated and that all of the clean-fuel vehicle 
aftermarketconversion certifier's vehicles are subject to the post-
installationtest requirement of paragraph (c)(2) of this section.
    (iii) If the clean-fuel vehicle aftermarket conversion 
certifiergranted an exemption originally estimates that 300 or 
fewerconversions would be performed in the calendar year, and then 
laterrevises the estimate to more than 300 for the year, the 
certifiershall inform the Administrator of such revision. A post-
installationemissions test for each conversion performed after the 
estimate isrevised is required pursuant to the requirements of paragraph 
(c)(2)of this section. The estimated number of conversions from such 
aclean-fuel vehicle aftermarket conversion certifier must be greaterthan 
300 in the following calendar year.
    (2) A clean-fuel vehicle aftermarket conversion certifier 
withaggregate sales less than 10,000 converted vehicles within a 
givencalendar year shall conduct post-installation emissions testing 
usingeither of the following test methods:
    (i) The carbon monoxide (CO) emissions of the converted vehiclemust 
be determined in the manner in which CO emissions are 
determinedaccording to the inspection and maintenance requirements 
applicable inthe area in which the vehicle is converted or is expected 
to beoperated.
    (A) For dual-fuel vehicles, a separate test is required for eachfuel 
on which the vehicle is capable of operating. For flexible fuelvehicles, 
a single test is required on a fuel that falls within therange of fuel 
mixtures for which the vehicle was designed. The testfuel(s) used must 
be commercially available.
    (B) A converted vehicle shall be considered to meet therequirements 
of this paragraph if the vehicle's measured exhaust COconcentration(s) 
is lower than the cutpoint(s) used to determine COpass/fail under the 
inspection and maintenance program in the area inwhich the conversion is 
expected to be operated.
    (1) If CO pass/fail criteria are not available for a vehiclefuel 
type then pass/fail criteria specific to gasoline use are to beused for 
vehicles of that fuel type.
    (2) [Reserved]
    (ii) The carbon monoxide (CO) emissions of the converted vehiclemust 
be determined in the manner specified in the two speed idle test-EPA 91 
found in 40 CFR 85.2215. All provisions in the two speed idletest must 
be observed except as detailed in paragraph (c)(2)(ii)(D) ofthis 
section.
    (A) For dual and flexible fuel vehicles, a separate test isrequired 
for each certification test fuel required for exhaustemissions testing 
pursuant to 40 CFR 86.113 or 40 CFR 86.1313.
    (B) For light-duty vehicles and light-duty trucks the test fuelsused 
during the emissions testing required by paragraph (c)(4) of thissection 
must comply with the fuel specifications for exhaust emissionstesting 
found in 40 CFR 86.113. For heavy-duty engines the test fuelsused during 
the emissions testing required by paragraph (c)(2) of thissection must 
comply with the fuel specifications for exhaust emissionstesting found 
in 40 CFR 86.1313.
    (C) A converted vehicle shall be considered to meet therequirements 
of this paragraph if the following criteria aresatisfied:
    (1) The vehicle's measured idle mode exhaust COconcentration(s) must 
be lower than the sum of 0.4 percent CO plus theidle mode certification 
CO emissions reference value as determinedaccording to the requirements 
of paragraph (b)(3) of this section.

[[Page 31]]

    (2) The vehicle's measured high-speed mode exhaust 
COconcentration(s) must be lower than the sum of 0.4 percent CO plus 
thehigh-speed certification CO emissions reference value as 
determinedaccording to the requirements of paragraph (b)(3) of this 
section.
    (D) For the purposes of the post-installation emissions 
testingrequired by paragraph (c) of this section, the following 
adjustmentsto the two speed idle test-EPA 91 in 40 CFR 85.2215 are 
necessary.
    (1) Testing of hydrocarbon emissions and equipmentassociated solely 
with hydrocarbon emissions testing is not required.
    (2) The CO emissions pass/fail criteria in 40 CFR 85.2215(a)(2), 
(c)(1)(ii)(A), (c)(2)(ii)(A)(1), (c)(2)(iii)(A)(1),and (d)(3)(i) are to 
be replaced with the pass/fail criteria detailedin paragraph 
(c)(2)(ii)(C) of this section. All HC pass/fail criteriain 40 CFR 
85.2215 do not apply.
    (3) The void test criteria in 40 CFR 85.2215(a)(3) and (b)(2)(iv) 
associated with maintaining the measured concentration of COplus 
CO2 above six percent does not apply. However, 
theAdministrator may reconsider requiring that the void test criteria 
in40 CFR 85.2215(a)(3) and (b)(2)(iv) be applied, and may issue 
anadvisory memorandum to this effect in the future.
    (4) The ambient temperature levels encountered by thevehicle during 
testing must comply with the specifications in 40 CFR86.130 or 40 CFR 
86.1330.
    (d) The clean-fuel vehicle aftermarket conversion certifier shallbe 
considered a manufacturer for purposes of Clean Air Act sections206 and 
207 and related enforcement provisions, and must acceptliability for in-
use performance of all the vehicles produced underthe certificate of 
conformity as outlined in 40 CFR part 85.
    (1) The useful life period for the purposes of determining the in-
use liability of the clean-fuel vehicle aftermarket conversioncertifier 
shall be the original useful life of the vehicle prior toconversion.
    (2) [Reserved]
    (e) Tampering. (1) The conversion from an engine or vehiclecapable 
of operating on gasoline or diesel fuel only to a clean-fuelengine or 
vehicle shall not be considered a violation of the tamperingprovisions 
of Clean Air Act section 203(a)(3), if such conversion isdone pursuant 
to a conversion configuration certificate by theaftermarket conversion 
certifier or by an installer listed on thecertificate.
    (2) In order to comply with the provisions of this subpart, 
anaftermarket conversion installer must:
    (i) Install a certified aftermarket conversion system for whichthe 
installer is listed by the certifier; and
    (ii) Perform such installation according to instructions providedby 
the aftermarket conversion certifier.
    (f) Data collection. The clean-fuel vehicle aftermarketconversion 
certifier is responsible for maintaining records of eachengine and 
vehicle converted for use in the Clean Fuel Fleets programfor a period 
of 5 years. The records are to include the engine orvehicle make, engine 
or vehicle model, engine or vehicle model year,and engine or vehicle 
identification number of converted engines andvehicles; the 
certification number of the conversion configuration;the brand names and 
part numbers of the parts included in theconversion configuration; the 
date of the conversion and the facilityat which the conversion was 
performed; and the results of post-installation emissions testing if 
required pursuant to paragraph (c)of this section.

[59 FR 50080, Sept. 30, 1994, as amended at 61 FR 129, Jan. 3,1996]



Sec. 88.307-94  Exemption from temporal transportation control measures for CFFVs.

    (a) States with covered areas shall exempt any CFFV required bylaw 
to participate in the clean-fuel fleet program or any vehiclegenerating 
credits under Sec. 88.304-94(c) fromtransportation control measures 
(TCMs) existing wholly or partiallyfor air quality reasons included in 
an approved state implementationplan which restrict vehicle usage based 
primarily on temporalconsiderations, such as time-of-day and day-of-week 
exemptions.However, CFFVs shall not qualify for TCMs where the temporal 
elementis secondary to some other control element

[[Page 32]]

and, in no case, shallsuch exemptions apply if they create a clear and 
direct safety hazard.This exemption does not include access to high 
occupancy vehicle (HOV)lanes, except as provided in Sec. 88.313-93.
    (b) States shall also grant temporal TCM exemptions to 
qualifyingCFFVs being operated after SIP approval, but prior to the 
effectivedate for commencement of a state's CFFV credit program.
    (c) Temporal TCM exemptions provided for in paragraph (a) of 
thissection are not effective outside of the areas for which states can 
berequired to establish CFFV credit programs.
    (1) Such exemptions shall remain effective only while the 
subjectvehicle remains in compliance with applicable CFFV emissions 
standardsand other CFFV credit program requirements.
    (2) CFFV TCM exemptions shall not be transferred between 
vehicleswithin the same fleet nor shall they be sold or traded.



Sec. 88.308-94  Programmatic requirements for clean-fuel fleet vehicles.

    (a) Multi-State nonattainment areas. The states comprising amulti-
State nonattainment area shall, to the greatest extent 
possible,promulgate consistent clean-fuel fleet vehicle programs.
    (b) Program start date. The SIP revision shall provide thatthe clean 
fuel vehicle purchase requirements begin to apply no laterthan model 
year 1999.

[59 FR 50082, Sept. 30, 1994, as amended at 63 FR 20107, Apr.23, 1998]



Sec. 88.309  [Reserved]



Sec. 88.310-94  Applicability to covered Federal fleets.

    (a) Compliance by Federal vehicles. As per section 258(a) ofthe Act, 
fleets owned or operated by any agency, department, orinstrumentality of 
the United States shall comply with the applicablestate regulations 
concerning CFFVs established in the SIP revision.Such fleets shall be 
treated in the same manner as private or othergovernment fleets under 
the applicable state regulations.
    (1) Federal agencies shall obtain CFFVs from original 
equipmentmanufacturers, to the extent possible, as required under 
section 248of the CAA.
    (2) The Secretary of Defense may exempt any vehicle(s) from 
theprovisions of any CFFV credit program established in the SIP 
revisionby certifying to the Administrator in writing that inclusion of 
thespecified vehicle(s) in such a program could have an adverse impact 
onthe national security. The Secretary of Defense shall also provide 
acopy of this statement of exemption to the state agency 
administeringthe CFFV credit program in the covered area in which the 
specifiedvehicle(s) is registered/operated.
    (b) [Reserved]



Sec. 88.311-93  Emissions standards for Inherently Low-Emission Vehicles.

    (a) Certification. (1) Emissions Testing Procedures. Avehicle shall 
be certified as an ILEV if that vehicle satisfies thefollowing 
conditions:
    (i) The vehicle shall be certified under the appropriate 
exhaustemissions standards from paragraph (c) or (d) of this 
sectiondepending on the vehicle's weight classification.
    (ii) The vehicle shall be certified as having fuel vapor 
emissionswhich are five or less total grams per test as measured by the 
currentFederal Test Procedure (FTP), modified for ILEV certification, 
from 40CFR part 86, subpart B for LDVs and LDTs and from 40 CFR part 
86,subpart M for HDVs.
    (A) After disabling any and all auxiliary emission control 
devices(canister, purge system, etc.) related to control of 
evaporativeemissions, the fuel vapor emissions shall be measured using 
the FTPregulations in effect at the time the vehicle is to be certified 
as anILEV. For purposes of this section, the vehicle's fuel vapor 
emissionsshall consist of the total grams of diurnal, hot soak, running 
loss,and resting loss emissions, as appropriate, for the particularfuel/
vehicle/engine combination to be tested. In determining ILEVevaporative 
emissions, the diurnal emissions measurement procedureshall consist of a 
single diurnal heat build using an ambient or fueltemperature range of 
72[deg]-96 [deg]F (22[deg]-36[deg]C), as appropriate for the applicable 
FTP regulations (40 CFRpart 86).

[[Page 33]]

    (B) Conventional Federal Test Procedure. A vehicle with 
noevaporative emissions control system components may have 
itsevaporative emissions certified for its particular GVWR weightclass/
subclass if it passes the conventional evaporative emissions FTPfrom 40 
CFR part 86, subpart B for LDVs and LDTs or from 40 CFR part86, subpart 
M for HDVs, as applicable.
    (iii) The vehicle must meet other special requirements applicableto 
conventional or clean-fuel vehicles and their fuels as described inany 
other parts of this chapter, including 40 CFR parts 86 and 88.
    (2) Vehicles which have a closed or sealed fuel system may 
becertified at the administrator's option by engineering evaluation 
inlieu of testing. These vehicles will be certified as ILEVs only if 
aleak in the fuel system would result in the vehicle becominginoperative 
due to loss of fuel supply, or if half the fuel escapeswithin 24 hours.
    (b) Identification. In the application for a vehicle'scertification 
as an ILEV, the manufacturer or the manufacturer's agentshall provide 
for positive identification of the vehicle's status asan ILEV in the 
vehicle's Vehicle Emission Control Information (VECI)label in accordance 
with 40 CFR 86.094-35 and 86.095-35.The label shall contain a 
highlighted statement (e.g., underscored orboldface letters) that the 
vehicle is certified to applicable emissionstandards for ILEV exhaust 
and evaporative emission standards.
    (c) Light-duty vehicles and light-duty trucks. ILEVs in LDVand LDT 
classes shall have exhaust emissions which do not exceed theLEV exhaust 
emission standards for NMOG, CO, HCHO, and PM and the ULEVexhaust 
emission standards for NOX listed in TablesA104-1 through 
A104-6 for light-duty CFVs. Exhaustemissions shall be measured in 
accordance with the test proceduresspecified in Sec. 88.104-94(k). An 
ILEV must be ableto operate on only one fuel, or must be certified as an 
ILEV on allfuels on which it can operate. These vehicles shall also 
comply withall requirements of 40 CFR part 86 which are applicable 
toconventional gasoline-fueled, methanol-fueled, diesel-fueled, 
naturalgas-fueled or liquified petroleum gas-fueled LDVs/LDTs of the 
samevehicle class and model year.
    (d) Heavy-duty vehicles. ILEVs in the HDV class shall haveexhaust 
emissions which do not exceed the exhaust emission standardsin grams per 
brake horsepower-hour listed inSec. 88.105-94(d). Exhaust emissions 
shall bemeasured in accordance with the test procedures specified 
inSec. 88.105-94(e). An ILEV must be able to operate ononly one fuel, 
or must be certified as an ILEV on all fuels on whichit can operate. 
These vehicles shall also comply with all requirementsof 40 CFR part 86 
which are applicable in the case of conventionalgasoline-fueled, 
methanol-fueled, diesel-fueled, natural gas-fueled orliquified petroleum 
gas-fueled HDVs of the same weight class and modelyear.
    (e) Applicability. State actions to opt out of the clean-fuel fleet 
program under section 182(c) of the Act do not affect theapplicability 
of the ILEV program in the affected states.

[57 FR 60046, Dec. 17, 1992, as amended at 59 FR 48536, Sept.21, 1994; 
59 FR 50082, Sept. 30, 1994, 61 FR 127, Jan. 3, 1996]



Sec. 88.311-98  Emissions standards for Inherently Low-Emission Vehicles.

    Section 88.311-98 includes text that specifies requirementsthat 
differ from Sec. 88.311-93. Where a paragraph inSec. 88.311-93 is 
identical and applicable toSec. 88.311-98, this may be indicated by 
specifyingthe corresponding paragraph and the statement ``[Reserved]. 
Forguidance see Sec. 88.311-93.''
    (a) heading through (a)(1)(ii) [Reserved]. For guidance seeSec. 
88.311-93.
    (iii) The vehicle must meet other special requirements applicableto 
conventional or clean-fuel vehicles and their fuels as described inany 
other regulations in 40 CFR chapter I, subchapter C, including 40CFR 
parts 86 and 88 (e.g., onboard refueling provisions).
    (b) through (e) [Reserved]. For guidance seeSec. 88.311-93.

[59 FR 16309, Apr. 6, 1994]

    Effective Date Note: The new information collectionrequirements for 
Sec. 88.311-98 published in theFederal Register at 59 FR 16309, Apr. 6, 
1994, which apply to1998 and later model year vehicles, have not been 
approved by theOffice of Management and Budget (OMB) and are not 
effective.

[[Page 34]]



Sec. 88.312-93  Inherently Low-Emission Vehicle labeling.

    (a) Label design. (1) Label design shall consist of eitherof the 
following specifications:
    (i) The label shall consist of a white rectangular 
background,approximately 12 inches (30 centimeters) high by 18 inches 
(45centimeters) wide, with ``CLEAN AIR VEHICLE'' printed incontrasting 
block capital letters at least 4.3 inches (10.6centimeters) tall and 1.8 
inches (4.4 centimeters) wide with a strokewidth not less than 0.5 
inches (1.3 centimeters). In addition, thewords ``INHERENTLY LOW-
EMISSION VEHICLE'' must be presentin lettering no smaller than 1 inch 
(2.5 centimeters) high. Nothingshall be added to the label which impairs 
readability. Labels shallinclude a serialized identification number; or
    (ii) The label shall consist of a white truncated-
circularbackground, approximately 10 inches (25 centimeters) in diameter 
by 7inches (17.5 centimeters) in height. The bottom edge of the 
truncated-circular background shall be approximately 2 inches (5 
centimeters)from the center. The acronym ``ILEV'' shall be printed onthe 
label in contrasting block capital letters at least 2 inches 
(5centimeters) tall and 1.5 inches (3.8 centimeters) wide with a 
strokewidth not less than 0.4 inches (1.0 centimeter). In addition, 
thewords ``CLEAN AIR VEHICLE'' must be present in letteringno smaller 
than 0.8 inches (2.0 centimeters) high. Nothing shall beadded to the 
label which impairs readability. Labels shall include aserialized 
identification number.
    (2) The ILEV label shall be fabricated or affixed to a vehicle 
insuch a manner that its removal from the vehicle cannot be 
accomplishedwithout defacing or destroying the label in whole or in 
part.
    (3) Along with the manufacturer's application to certify aparticular 
ILEV engine class, the manufacturer or the manufacturer'sagent shall 
submit to EPA ILEV labels or reasonable facsimiles of thetypes which may 
be mounted on a certified ILEV vehicle of that class.
    (b) Eligibility. Vehicle manufacturers or their agents mustinstall 
ILEV labels on a certified ILEV vehicle at the time of itssale to an 
eligible fleet owner if the vehicle is to be eligible forexpanded TCM 
exemptions. An eligible fleet owner is one who is in acovered area and 
owns a total of at least ten motor vehicles(including the ILEV(s) being 
purchased) which operate in the owner'sfleet. All of the following shall 
be provided to demonstrateeligibility: Photocopies of no less than nine 
motor vehicleregistrations indicating registration in the ILEV 
purchaser's name, asigned statement by the ILEV purchaser that these 
vehicles areoperational in the purchaser's fleet and that the ILEV being 
purchasedwill also be operated in this fleet, and a signed statement by 
theILEV purchaser that the ILEV labels will be removed and disposed 
ofwhen the vehicle is sold, given, leased (except as part of a 
dailyrental fleet), or offered for long-term loan to someone who has 
notdemonstrated eligibility for expanded TCMs available to 
ILEVsaccording to these criteria.
    (c) ILEV Label installation. (1) Except as provided for inthis 
paragraph (c), no person shall attach an ILEV label or anyfacsimile of 
an ILEV label to any vehicle.
    (2)(i) The manufacturer or the manufacturer's agent shall 
attachthree labels on the vehicle in plain sight: One on the rear of 
thevehicle and one on each of two sides of the vehicle. Each label 
shallconform to the specifications of paragraph (a) of this section.
    (ii) In the case that an ILEV label of the proportions specifiedin 
paragraph (a)(1) of this section cannot be attached to the rear ofthe 
ILEV, the manufacturer or the manufacturer's agent shall attach tothe 
rear of the vehicle an ILEV label of either of the followingproportions:
    (A) The label shall consist of a white rectangular 
background,approximately 4 inches (10 centimeters) high by 24 inches 
(60centimeters) wide, with ``CLEAN AIR VEHICLE'' printed incontrasting 
block capital letters at least 2.8 inches (7 centimeters)tall and 1.3 
inches (3.3 centimeters) wide with a stroke width notless than 0.3 
inches (0.8 centimeter). In addition, the words``INHERENTLY LOW-EMISSION 
VEHICLE'' must be present inlettering

[[Page 35]]

no smaller than 0.6 inches (1.5 centimeters) high.Nothing shall be added 
to the label which impairs readability. Labelsshall include a serialized 
identification number; or
    (B) The label shall consist of a white truncated-circularbackground, 
approximately 5 inches (12.5 centimeters) in diameter by3.5 inches (8.8 
centimeters) in height. The bottom edge of thetruncated-circular 
background shall be approximately 1 inch (2.5centimeters) from the 
center. The acronym ``ILEV'' shallbe printed on the label in contrasting 
block capital letters at least1 inch (2.5 centimeters) tall and 0.8 
inches (2.0 centimeters) widewith a stroke width not less than 0.3 
inches (0.8 centimeters). Inaddition, the words ``CLEAN AIR VEHICLE'' 
must be presentin lettering no smaller than 0.4 inches (1.0 centimeter) 
high. Nothingshall be added to the label which impairs readability. 
Labels shallinclude a serialized identification number.
    (d) Label removal. Fleet ILEV owners shall remove anddispose of the 
ILEV labels on a vehicle before selling or transferringownership of an 
ILEV or offering it for lease (unless the ILEV is partof a daily rental 
fleet) or long-term loan. This provision shall notapply if the person 
who is receiving the vehicle demonstrateseligibility for expanded TCM 
exemptions under the federal ILEV programas described in paragraph (b) 
of this section, or is otherwisequalified under state regulations which 
expressly expand ILEV labeleligibility.
    (e) Label replacement. (1) The manufacturer shall makereplacement 
ILEV labels available to the fleet owner of a qualifyingILEV to replace 
any ILEV label which has been lost or removed due tovehicle damage, 
repair, sale, or lease. The fleet owner's requestshall include proof of 
ownership of the ILEV in question and proof ofthe fleet owner's 
eligibility for ILEV TCM exemptions, as outlined inparagraph (c) of this 
section. Each label shall be imprinted with thesame serial number as 
initially assigned to the damaged/missing ILEVlabel(s) for that vehicle. 
Any portion of a damaged label remaining onthe ILEV shall be removed 
from the vehicle and submitted with therequest as proof of loss.
    (2) Upon receipt of the replacement ILEV label(s), the fleet 
ownershall attach the new ILEV label(s) only to the vehicle for 
whichreplacement ILEV label(s) were requested.

[58 FR 11901, Mar. 1, 1993, as amended at 61 FR 128, Jan. 3,1996]



Sec. 88.313-93  Incentives for the purchase of Inherently Low-Emission Vehicles.

    (a) Administration. (1) The incentives granted to ILEVsprovided in 
this section are not effective outside of nonattainmentareas for which 
states are required to establish CFFV programs undersection 246 of the 
CAA, unless specifically added by states forqualifying vehicles.
    (2) Incentives for purchasing ILEVs shall not be transferredbetween 
vehicles within the same fleet nor shall they be sold ortraded.
    (3) No vehicle over 26,000 pounds (11,800 kilograms) GVWR shall 
beeligible for the following ILEV incentives.
    (b) Exemption from temporal TCMs. A fleet vehicle which hasbeen 
certified and labeled as an ILEV according to the provisions ofthis 
section and which continues to be in compliance with applicableemissions 
standards and other ILEV program requirements shall beexempted from TCMs 
existing for air quality reasons included inapproved state 
implementation plans which restrict vehicle usage basedprimarily on 
temporal considerations, such as time-of-day and day-of-week exemptions.
    (c) Exemption from high-occupancy vehicle lane restrictions.(1) A 
fleet vehicle which has been certified and labeled as an ILEVaccording 
to the provisions of Sec. Sec. 88.311 and 88.312and which continues to 
be in compliance with applicable emissionsstandards and other ILEV 
program requirements shall be exempt fromTCMs which restrict a vehicle's 
access to certain roadway lanes basedon the number of occupants in that 
vehicle, usually known as high-occupancy vehicle (HOV) lanes. These 
exemptions shall not apply ifthey would create a clear and direct safety 
hazard.

[[Page 36]]

    (2) In a state containing a covered area, or areas, thegovernor may 
petition the Administrator for a waiver from theexemption from HOV lane 
restrictions for ILEVs for any section of HOVlane in the covered area(s) 
that can be shown to be congestedprimarily due to the operation or 
projected operation of ILEVs. Thewaiver application shall demonstrate 
the infeasibility of other meansof alleviating HOV/CAV lane congestion, 
such as adding an additionalHOV/CAV lane, further increasing vehicle 
occupancy requirements andreducing the use of the lane by noneligible 
vehicles.



                   Sec. Tables to Subpart C of Part 88

               Table C94-1--Fleet CreditTable Based on Reduction in NMOG. Vehicle Equivalents for Light-DutyVehicles and Light-Duty Trucks
                            TableC94-1.1--Credit Generation: Purchasing More Clean-FuelVehicles Than Required by the Mandate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           LDT 6000   eq>6000 GVWR,
                                NMOG                                 <=6000GVWR,   GVWR, 6000 GVWR,      GVWR, 5750
                                                                      <=3750 LVW    eq>3750 LVW      <=3750 ALVW     eq>3750ALVW <=5750        ALVW
                                                                                     <=5750 LVW                             ALVW
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEV................................................................         1.00           1.26             0.71               0.91               1.11
ULEV...............................................................         1.20           1.54             1.00               1.26               1.56
ZEV................................................................         1.43           1.83             1.43               1.83               2.23
--------------------------------------------------------------------------------------------------------------------------------------------------------


                  Table C94-1.2--CreditGeneration: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
              NMOG                  GVWR,     3750    <=3750 ALVW      ALVW, <=5750   5750
                                  <=3750 LVW  LVW  <=5750 LVW                         ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         0.00           0.00             0.00             0.00             0.00
ULEV...........................         0.20           0.29             0.29             0.34             0.45
ZEV............................         0.43           0.57             0.71             0.91             1.11
----------------------------------------------------------------------------------------------------------------


                   Table C94-1.3--CreditNeeded in Lieu of Purchasing a LEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
              NMOG                  GVWR,     3750    <=3750 ALVW      ALVW <=5750      <=5750 ALVW
                                  <=3750 LVW  LVW  <=5750 LVW                         ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         1.00           1.26             0.71             0.91             1.11
----------------------------------------------------------------------------------------------------------------


  Table C94-2--Fleet CreditTable Based on Reduction in NMOG+NOX. Vehicle Equivalentsfor Light-Duty Vehicles and
                                                Light-Duty Trucks
        TableC94-2.1--Credit Generation: Purchasing More Clean-FuelVehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
            NMOG+NOX                GVWR,       eq>3750 LVW       <=3750ALVW      ALVW  <=5750   5750
                                  <=3750 LVW     <=5750 LVW                           ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         1.00           1.39             0.33             0.43             0.52
ULEV...........................         1.09           1.52             1.00             1.39             2.06

[[Page 37]]

 
ZEV............................         1.73           2.72             1.73             2.72             3.97
----------------------------------------------------------------------------------------------------------------


                  Table C94-2.2--CreditGeneration: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
            NMOG+NOX                GVWR,       eq>3750 LVW      <=3750 ALVW      ALVW  <=5750   5750
                                  <=3750 LVW     <=5750 LVW                           ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         0.00           0.00             0.00             0.00             0.00
ULEV...........................         0.09           0.13             0.67             0.96             1.54
ZEV............................         0.73           1.34             1.40             2.29             3.45
----------------------------------------------------------------------------------------------------------------


                   Table C94-2.3--CreditNeeded in Lieu of Purchasing a LEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  3750   eq>6000 GVWR,
              NMOG+NOX                  GVWR,       eq>3750 LVW       GVWR,       ALVW  <=5750   5750
                                      <=3750 LVW     <=5750 LVW    <=3750 ALVW        ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV................................         1.00           1.39           0.33           0.43             0.52
----------------------------------------------------------------------------------------------------------------


Table C94-3--Fleet CreditTable Based on Reduction in Carbon Monoxide. Vehicle Equivalents forLight-Duty Vehicles
                                              and Light-Duty Trucks
        TableC94-3.1--Credit Generation: Purchasing More Clean-FuelVehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                  LDT 6000 GVWR,     LDT 3750   eq>6000 GVWR,
                 CO                  <=6000GVWR,    eq>3750 LVW       GVWR,       ALVW  <=5750   5750
                                      <=3750 LVW     <=5750 LVW    <=3750 ALVW        ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV................................         1.00           1.00           1.00           1.00             1.00
ULEV...............................         2.00           2.29           2.00           2.29             2.47
ZEV................................         3.00           3.59           3.00           3.59             3.94
----------------------------------------------------------------------------------------------------------------


                  Table C94-3.2--CreditGeneration: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
               CO                   GVWR,     3750    <=3750 ALVW      ALVW <=5750    5750
                                  <=3750 LVW  LVW  <=5750 LVW                         ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         0.00           0.00             0.00             0.00             0.00
ULEV...........................         1.00           1.00             1.00             1.00             1.00
ZEV............................         2.00           2.29             2.00             2.29             2.47
----------------------------------------------------------------------------------------------------------------


[[Page 38]]


                   Table C94-3.3--CreditNeeded in Lieu of Purchasing a LEV To Meet The Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
               CO                   GVWR,       eq>3750 LVW       <=3750ALVW      ALVW  <=5750   5750
                                  <=3750 LVW     <=5750 LVW                           ALVW             ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................         1.00           1.00             1.00             1.00             1.00
----------------------------------------------------------------------------------------------------------------


 Table C94-4--Fleet Credit TableBased on Reduction in NMHC+NOX. Vehicle
  Equivalents forHeavy-Duty Vehicles--Table C94-4.1--CreditGeneration:
     Purchasing More Clean-Fuel Vehicles Than Required by theMandate
------------------------------------------------------------------------
                                              Light    Medium
                 NMHC+NOX                      HDV       HDV    HeavyHDV
------------------------------------------------------------------------
LEV.......................................      1.00      1.00      1.00
ULEV......................................      1.87      1.87      1.87
ZEV.......................................      3.53      3.53      3.53
------------------------------------------------------------------------


  Table C94-4.2--Credit Generation:Purchasing a ULEV or ZEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                      NMHC+NOX                           HDV       HDV
------------------------------------------------------------------------
LEV.................................................      0.00      0.00
ULEV................................................      0.87      0.87
ZEV.................................................      2.53      2.53
------------------------------------------------------------------------


   Table C94-4.3--Credit Needed in Lieuof Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                      NMHC+NOX                           HDV       HDV
------------------------------------------------------------------------
LEV.................................................      1.00      1.00
------------------------------------------------------------------------


    Table C94-5--Fleet Credit TableBased on Reduction in Co. Vehicle
        Equivalents for Heavy-DutyVehicles--Table C94-5.1--Credit
   Generation:Purchasing More Clean-Fuel Vehicles Than Required by the
                                 Mandate
------------------------------------------------------------------------
                                              Light    Medium     Heavy
                    CO                         HDV       HDV       HDV
------------------------------------------------------------------------
LEV.......................................      1.00      1.00      1.00
ULEV......................................      2.00      2.00      2.00
ZEV.......................................      3.00      3.00      3.00
------------------------------------------------------------------------


  Table C94-5.2--Credit Generation:Purchasing a ULEV or ZEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                         CO                              HDV       HDV
------------------------------------------------------------------------
LEV.................................................      0.00      0.00
ULEV................................................      1.00      1.00
ZEV.................................................      2.00      2.00
------------------------------------------------------------------------


   Table C94-5.3--Credit Needed in Lieuof Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                       Light
                         CO                             HDV    MediumHDV
------------------------------------------------------------------------
LEV................................................      1.00       1.00
------------------------------------------------------------------------


[58 FR 11901, Mar. 1, 1993, as amended at 59 FR 50082, Sept.30, 1994, 61 
FR 128, Jan. 3, 1996]



PART 89_CONTROL OF EMISSIONS FROM NEW AND IN-USENONROAD COMPRESSION-IGNITION ENGINES--Table of Contents




                            Subpart A_General

Sec.
89.1 Applicability.
89.2 Definitions.
89.3 Acronyms and abbreviations.
89.4 [Reserved]
89.5 Table and figure numbering; position.
89.6 Reference materials.
89.7 Treatment of confidential information.

Appendix A to Subpart A--State Regulation of NonroadInternal Combustion 
          Engines

        Subpart B_Emission Standards and Certification Provisions

89.101 Applicability.
89.102 Effective dates, optional inclusion, flexibility forequipment 
          manufacturers.
89.103 Definitions.
89.104 Useful life, recall, and warranty periods.
89.105 Certificate of conformity.
89.106 Prohibited controls.
89.107 Defeat devices.
89.108 Adjustable parameters, requirements.
89.109 Maintenance instructions and minimum allowablemaintenance 
          intervals.

[[Page 39]]

89.110 Emission control information label.
89.111 Averaging, banking, and trading of exhaust emissions.
89.112 Oxides of nitrogen, carbon monoxide, hydrocarbon, andparticulate 
          matter exhaust emission standards.
89.113 Smoke emission standard.
89.114 Special and alternate test procedures.
89.115 Application for certificate.
89.116 Engine families.
89.117 Test fleet selection.
89.118 Deterioration factors and service accumulation.
89.119 Emission tests.
89.120 Compliance with emission standards.
89.121 Certificate of conformity effective dates.
89.122 Certification.
89.123 Amending the application and certificate ofconformity.
89.124 Record retention, maintenance, and submission.
89.125 Production engines, annual report.
89.126 Denial, revocation of certificate of conformity.
89.127 Request for hearing.
89.128 Hearing procedures.
89.129 Right of entry.
89.130 Rebuild practices.

          Subpart C_Averaging, Banking, and Trading Provisions

89.201 Applicability.
89.202 Definitions.
89.203 General provisions.
89.204 Averaging.
89.205 Banking.
89.206 Trading.
89.207 Credit calculation.
89.208 Labeling.
89.209 Certification.
89.210 Maintenance of records.
89.211 End-of-year and final reports.
89.212 Notice of opportunity for hearing.

              Subpart D_Emission Test Equipment Provisions

89.301 Scope; applicability.
89.302 Definitions.
89.303 Symbols/abbreviations.
89.304 Equipment required for gaseous emissions; overview.
89.305 Equipment measurement accuracy/calibration frequency.
89.306 Dynamometer specifications and calibration weights.
89.307 Dynamometer calibration.
89.308 Sampling system requirements for gaseous emissions.
89.309 Analyzers required for gaseous emissions.
89.310 Analyzer accuracy and specifications.
89.311 Analyzer calibration frequency.
89.312 Analytical gases.
89.313 Initial calibration of analyzers.
89.314 Pre- and post-test calibration of analyzers.
89.315 Analyzer bench checks.
89.316 Analyzer leakage and response time.
89.317 NOX converter check.
89.318 Analyzer interference checks.
89.319 Hydrocarbon analyzer calibration.
89.320 Carbon monoxide analyzer calibration.
89.321 Oxides of nitrogen analyzer calibration.
89.322 Carbon dioxide analyzer calibration.
89.323 NDIR analyzer calibration.
89.324 Calibration of other equipment.
89.325 Engine intake air temperature measurement.
89.326 Engine intake air humidity measurement.
89.327 Charge cooling.
89.328 Inlet and exhaust restrictions.
89.329 Engine cooling system.
89.330 Lubricating oil and test fuels.
89.331 Test conditions.

Appendix A to Subpart D--Tables
Appendix B to Subpart D--Figures

               Subpart E_Exhaust Emission Test Procedures

89.401 Scope; applicability.
89.402 Definitions.
89.403 Symbols/abbreviations.
89.404 Test procedure overview.
89.405 Recorded information.
89.406 Pre-test procedures.
89.407 Engine dynamometer test run.
89.408 Post-test procedures.
89.409 Data logging.
89.410 Engine test cycle.
89.411 Exhaust sample procedure--gaseous components.
89.412 Raw gaseous exhaust sampling and analytical systemdescription.
89.413 Raw sampling procedures.
89.414 Air flow measurement specifications.
89.415 Fuel flow measurement specifications.
89.416 Raw exhaust gas flow.
89.417 Data evaluation for gaseous emissions.
89.418 Raw emission sampling calculations.
89.419 Dilute gaseous exhaust sampling and analytical systemdescription.
89.420 Background sample.
89.421 Exhaust gas analytical system; CVS bag sample.
89.422 Dilute sampling procedures--CVS calibration.
89.423 [Reserved]
89.424 Dilute emission sampling calculations.
89.425 [Reserved]

Appendix A to Subpart E--Figures
Appendix B to Subpart E--Tables 1

[[Page 40]]

                Subpart F_Selective Enforcement Auditing

89.501 Applicability.
89.502 Definitions.
89.503 Test orders.
89.504 Testing by the Administrator.
89.505 Maintenance of records; submittal of information.
89.506 Right of entry and access.
89.507 Sample selection.
89.508 Test procedures.
89.509 Calculation and reporting of test results.
89.510 Compliance with acceptable quality level and passingand failing 
          criteria for selective enforcement audits.
89.511 Suspension and revocation of certificates ofconformity.
89.512 Request for public hearing.
89.513 Administrative procedures for public hearing.
89.514 Hearing procedures.
89.515 Appeal of hearing decision.
89.516 Treatment of confidential information.

Appendix A to Subpart F--Sampling Plans for SelectiveEnforcement 
          Auditing of Nonroad Engines

         Subpart G_Importation of Nonconforming Nonroad Engines

89.601 Applicability.
89.602 Definitions.
89.603 General requirements for importation of nonconformingnonroad 
          engines.
89.604 Conditional admission.
89.605 Final admission of certified nonroad engines.
89.606 Inspection and testing of imported nonroad engines.
89.607 Maintenance of independent commercial importer'srecords.
89.608 ``In Use'' inspections and recallrequirements.
89.609 Final admission of modification nonroad engines andtest nonroad 
          engines.
89.610 Maintenance instructions, warranties, emissionlabeling.
89.611 Exemptions and exclusions.
89.612 Prohibited acts; penalties.
89.613 Treatment of confidential information.
89.614 Importation of partially complete engines.

                      Subpart H_Recall Regulations

89.701 Applicability.
89.702 Definitions.
89.703 Applicability of part 85, subpart S.

            Subpart I_Emission Defect Reporting Requirements

89.801 Applicability.
89.802 Definitions.
89.803 Applicability of part 85, subpart T.

                     Subpart J_Exemption Provisions

89.901 Applicability.
89.902 Definitions.
89.903 Application of section 216(10) of the Act.
89.904 Who may request an exemption.
89.905 Testing exemption.
89.906 Manufacturer-owned exemption and precertificationexemption.
89.907 Display exemption.
89.908 National security exemption.
89.909 Export exemptions.
89.910 Granting of exemptions.
89.911 Submission of exemption requests.
89.912 Treatment of confidential information.
89.913 What provisions apply to engines certified under themotor-vehicle 
          program?
89.914 What provisions apply to vehicles certified under themotor-
          vehicle program?
89.915 Staged-assembly exemption.
89.916 Emergency-vessel exemption for marine engines below37 kW.

       Subpart K_General Enforcement Provisions and ProhibitedActs

89.1001 Applicability.
89.1002 Definitions.
89.1003 Prohibited acts.
89.1004 General enforcement provisions.
89.1005 Injunction proceedings for prohibited acts.
89.1006 Penalties.
89.1007 Warranty provisions.
89.1008 In-use compliance provisions.
89.1009 What special provisions apply to branded engines?

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

    Source: 59 FR 31335, June 17, 1994, unless otherwisenoted.



                            Subpart A_General



Sec. 89.1  Applicability.

    (a) This part applies for all compression-ignition nonroad 
engines(see definition of ``nonroad engine'' inSec. 89.2) except those 
specified in paragraph (b) of thissection. This means that the engines 
for which this part appliesinclude but are not limited to the following:
    (1) Compression-ignition engines exempted from the requirements of40 
CFR Part 92 by 40 CFR 92.907;
    (2) Compression-ignition engines exempted from the requirements of40 
CFR Part 94 by 40 CFR 94.907;

[[Page 41]]

    (3) Portable compression-ignition engines that are used in butnot 
installed in marine vessels (as defined in the General Provisionsof the 
United States Code, 1 U.S.C. 3);
    (4) Non-propulsion compression-ignition engines used inlocomotives; 
and
    (5) Compression-ignition marine engines with rated power under 37kW.
    (b) (1) Aircraft engines. This part does not apply forengines used 
in aircraft (as defined in 40 CFR 87.1).
    (2) Mining engines. This part does not apply for enginesused in 
underground mining equipment and regulated by the MiningSafety and 
Health Administration (MSHA) in 30 CFR parts 7, 31, 32, 36,56, 57, 70, 
and 75.
    (3) Locomotive engines. This part does not apply for enginesthat:
    (i) Are subject to the standards of 40 CFR part 92; or
    (ii) Are exempted from the requirements of 40 CFR part 92 
byexemption provisions of 40 CFR part 92 other than those specified in40 
CFR 92.907.
    (4) Marine engines. This part does not apply for enginesthat:
    (i) Are subject to the standards of 40 CFR part 94;
    (ii) Are exempted from the requirements of 40 CFR part 94 
byexemption provisions of 40 CFR part 94 other than those specified in40 
CFR 94.907 or 94.912.
    (iii) Are marine engines (as defined in 40 CFR part 94) with 
ratedpower at or above 37kW that are manufactured in calendar years 
inwhich the standards of 40 CFR part 94 are not yet applicable.
    (5) Hobby engines. This part does not apply for engines witha per-
cylinder displacement of less than 50 cubic centimeters.
    (6) Tier 4 engines. This part does not apply to engines thatare 
subject to emission standards under 40 CFR part 1039. See 40 CFR1039.1 
to determine when that part 1039 applies. Note that certainrequirements 
and prohibitions apply to engines built on or afterJanuary 1, 2006 if 
they are installed in stationary applications or inequipment that will 
be used solely for competition, as described in 40CFR 1039.1 and 40 CFR 
1068.1; those provisions apply instead of theprovisions of this part 89.
    (c) In certain cases, the regulations in this part 89 apply 
toengines at or above 250 kW that would otherwise be covered by 40 
CFRpart 1048. See 40 CFR 1048.620 for provisions related to 
thisallowance.
    (d) This part applies as specified in 40 CFR part 60 subpart IIII,to 
compression-ignition engines subject to the standards of 40 CFRpart 60, 
subpart IIII.

[64 FR 73330, Dec. 29, 1999, as amended at 69 FR 39212, June29, 2004; 70 
FR 40444, July 13, 2005; 71 FR 39184, July 11, 2006; 72FR 53126, Sept. 
18, 2007]



Sec. 89.2  Definitions.

    The following definitions apply to part 89. All terms not 
definedherein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401et seq.
    Adjustable parameter means any device, system, or element ofdesign 
which is physically capable of being adjusted (including thosewhich are 
difficult to access) and which, if adjusted, may affectemissions or 
engine performance during emission testing.
    Administrator means the Administrator of the EnvironmentalProtection 
Agency or his or her authorized representative.
    Aircraft means any vehicle capable of sustained air travelabove 
treetop heights.
    Amphibious vehicle means a vehicle with wheels or tracksthat is 
designed primarily for operation on land and secondarily foroperation in 
water.
    Auxiliary emission control device (AECD) means any elementof design 
that senses temperature, vehicle speed, engine RPM,transmission gear, or 
any other parameter for the purpose ofactivating, modulating, delaying, 
or deactivating the operation of anypart of the emission control system.
    Auxiliary marine diesel engine means a marine diesel enginethat is 
not a propulsion marine diesel engine.
    Blue Sky Series engine means a nonroad engine meeting 
therequirements of Sec. 89.112(f).
    Certification means, with respect to new nonroad engines,obtaining a 
certificate of conformity for an engine

[[Page 42]]

familycomplying with the nonroad engine emission standards and 
requirementsspecified in this part.
    Compression-ignition means relating to a type ofreciprocating, 
internal-combustion engine that is not a spark-ignitionengine.
    Constant-speed engine means an engine that is governed tooperate 
only at rated speed.
    Crankcase emissions means airborne substances emitted to 
theatmosphere from any portion of the engine crankcase ventilation 
orlubrication systems.
    Designated Enforcement Officer means the Director, AirEnforcement 
Division (2242A), U.S. Environmental Protection Agency,1200 Pennsylvania 
Ave., NW.,Washington, DC 20460.
    Emission control system means any device, system, or elementof 
design which controls or reduces the emission of substances from 
anengine.
    Engine, as used in this part, refers to nonroad engine.
    Engine manufacturer means any person engaged in themanufacturing or 
assembling of new nonroad engines or importing suchengines for resale, 
or who acts for and is under the control of anysuch person in connection 
with the distribution of such engines.Engine manufacturer does not 
include any dealer with respect to newnonroad engines received by such 
person in commerce.
    Engine used in a locomotive means either an engine placed inthe 
locomotive to move other equipment, freight, or passenger traffic,or an 
engine mounted on the locomotive to provide auxiliary power.
    EPA enforcement officer means any officer or employee of 
theEnvironmental Protection Agency so designated in writing by 
theAdministrator (or by his or her designee).
    Exhaust gas recirculation means an emission controltechnology that 
reduces emissions by routing exhaust gases that hadbeen exhausted from 
the combustion chamber(s) back into the engine tobe mixed with incoming 
air prior to or during combustion. The use ofvalve timing to increase 
the amount of residual exhaust gas in thecombustion chamber(s) that is 
mixed with incoming air prior to orduring combustion is not considered 
to be exhaust gas recirculationfor the purposes of this part.
    Family emission limit (FEL) means an emission level that isdeclared 
by the manufacturer to serve in lieu of an emission standardfor 
certification purposes and for the averaging, banking, and 
tradingprogram. A FEL must be expressed to the same number of decimal 
placesas the applicable emission standard.
    Full load governed speed is the maximum full load speed asspecified 
by the manufacturer in the sales and service literature andcertification 
application. This speed is the highest engine speed withan advertised 
power greater than zero.
    Gross power means the power measured at the crankshaft orits 
equivalent, the engine being equipped only with the standardaccessories 
(such as oil pumps, coolant pumps, and so forth) necessaryfor its 
operation on the test bed. Alternators must be used, ifnecessary, to run 
the engine. Fans, air conditioners, and otheraccessories may be used at 
the discretion of the manufacturer, but nopower adjustments for these 
accessories may be made.
    Identification number means a specification (for example,model 
number/serial number combination) which allows a particularnonroad 
engine to be distinguished from other similar engines.
    Intermediate speed means peak torque speed if peak torquespeed 
occurs from 60 to 75 percent of rated speed. If peak torquespeed is less 
than 60 percent of rated speed, intermediate speed means60 percent of 
rated speed. If peak torque speed is greater than 75percent of rated 
speed, intermediate speed means 75 percent of ratedspeed.
    Marine engine means a nonroad engine that is installed orintended to 
be installed on a marine vessel. This includes a portableauxiliary 
marine engine only if its fueling, cooling, or exhaustsystem is an 
integral part of the vessel. There are two kinds ofmarine engines:
    (1) Propulsion marine engine means a marine engine that moves 
avessel through the water or directs the vessel's movement.

[[Page 43]]

    (2) Auxiliary marine engine means a marine engine not used 
forpropulsion.
    Marine vessel has the meaning given in 1 U.S.C. 3, exceptthat it 
does not include amphibious vehicles. The definition in 1U.S.C. 3 very 
broadly includes every craft capable of being used as ameans of 
transportation on water.
    Model year (MY) means the manufacturer's annual new modelproduction 
period which includes January 1 of the calendar year, endsno later than 
December 31 of the calendar year, and does not beginearlier than January 
2 of the previous calendar year. Where amanufacturer has no annual new 
model production period, model yearmeans calendar year.
    New for purposes of this part, means a nonroad engine,nonroad 
vehicle, or nonroad equipment the equitable or legal title towhich has 
never been transferred to an ultimate purchaser. Where theequitable or 
legal title to the engine, vehicle, or equipment is nottransferred to an 
ultimate purchaser until after the engine, vehicle,or equipment is 
placed into service, then the engine, vehicle, orequipment will no 
longer be new after it is placed into service. Anonroad engine, vehicle, 
or equipment is placed into service when itis used for its functional 
purposes. With respect to imported nonroadengines, nonroad vehicles, or 
nonroad equipment, the term newmeans an engine, vehicle, or piece of 
equipment that is not covered bya certificate of conformity issued under 
this part at the time ofimportation, and that is manufactured after the 
effective date of aregulation issued under this part which is applicable 
to such engine,vehicle, or equipment (or which would be applicable to 
such engine,vehicle, or equipment had it been manufactured for 
importation intothe United States).
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, 
anonroad engine is any internal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or servesa 
dual purpose by both propelling itself and performing anotherfunction 
(such as garden tractors, off-highway mobile cranes andbulldozers); or
    (ii) In or on a piece of equipment that is intended to bepropelled 
while performing its function (such as lawnmowers and stringtrimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, isportable 
or transportable, meaning designed to be and capable of beingcarried or 
moved from one location to another. Indicia oftransportability include, 
but are not limited to, wheels, skids,carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) the engine is used to propel a motor vehicle or a vehicle 
usedsolely for competition, or is subject to standards promulgated 
undersection 202 of the Act; or
    (ii) the engine is regulated by a federal New Source 
PerformanceStandard promulgated under section 111 of the Act; or
    (iii) the engine otherwise included in paragraph (1)(iii) of 
thisdefinition remains or will remain at a location for more than 
12consecutive months or a shorter period of time for an engine locatedat 
a seasonal source. A location is any single site at a 
building,structure, facility, or installation. Any engine (or engines) 
thatreplaces an engine at a location and that is intended to perform 
thesame or similar function as the engine replaced will be included 
incalculating the consecutive time period. An engine located at 
aseasonal source is an engine that remains at a seasonal source 
duringthe full annual operating period of the seasonal source. A 
seasonalsource is a stationary source that remains in a single location 
on apermanent basis (i.e., at least two years) and that operates at 
thatsingle location approximately three months (or more) each year. 
Thisparagraph does not apply to an engine after the engine is removed 
fromthe location.
    Nonroad equipment means equipment that is powered by nonroadengines.
    Nonroad vehicle means a vehicle that is powered by a nonroadengine 
as defined in this section and that is not a motor vehicle or avehicle 
used solely for competition.

[[Page 44]]

    Nonroad vehicle or nonroad equipment manufacturer meansany person 
engaged in the manufacturing or assembling of new nonroadvehicles or 
equipment or importing such vehicles or equipment forresale, or who acts 
for and is under the control of any such person inconnection with the 
distribution of such vehicles or equipment. Anonroad vehicle or 
equipment manufacturer does not include any dealerwith respect to new 
nonroad vehicles or equipment received by suchperson in commerce. A 
nonroad vehicle or equipment manufacturer doesnot include any person 
engaged in the manufacturing or assembling ofnew nonroad vehicles or 
equipment who does not install an engine aspart of that manufacturing or 
assembling process. All nonroad vehicleor equipment manufacturing 
entities that are under the control of thesame person are considered to 
be a single nonroad vehicle or nonroadequipment manufacturer.
    Opacity means the fraction of a beam of light, expressed inpercent, 
which fails to penetrate a plume of smoke.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during 
whichpersonnel other than custodial personnel are at work in the 
vicinityof the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which 
anassembly line is in operation or all times during which 
testing,maintenance, service accumulation, production or compilation 
ofrecords, or any other procedure or activity related to 
certificationtesting, to translation of designs from the test stage to 
theproduction stage, or to engine manufacture or assembly is 
beingcarried out in a facility.
    Post-manufacture marinizer means a person who produces amarine 
diesel engine by substantially modifying a certified oruncertified 
complete or partially complete engine, and is notcontrolled by the 
manufacturer of the base engine or by an entity thatalso controls the 
manufacturer of the base engine. For the purpose ofthis definition, 
``substantially modify'' means changingan engine in a way that could 
change engine emission characteristics.
    Presentation of credentials means the display of thedocument 
designating a person as an EPA enforcement officer or EPAauthorized 
representative.
    Propulsion marine diesel engine means a marine diesel enginethat is 
intended to move a vessel through the water or direct themovement of a 
vessel.
    Rated speed is the maximum full load governed speed forgoverned 
engines and the speed of maximum horsepower for ungovernedengines.
    Spark-ignition means relating to a gasoline-fueled engine orother 
engines with a spark plug (or other sparking device) and withoperating 
characteristics significantly similar to the theoreticalOtto combustion 
cycle. Spark-ignition engines usually use a throttleto regulate intake 
air flow to control power during normal operation.
    Specific emissions means emissions expressed on the basis ofobserved 
brake power, using units of g/kW-hr. Observed brake powermeasurement 
includes accessories on the engine if these accessoriesare required for 
running an emission test (except for the coolingfan). When it is not 
possible to test the engine in the grossconditions, for example, if the 
engine and transmission form a singleintegral unit, the engine may be 
tested in the net condition. Powercorrections from net to gross 
conditions will be allowed with priorapproval of the Administrator.
    Sulfur-sensitive technology means an emission-controltechnology that 
experiences a significant drop in emission-controlperformance or 
emission-system durability when an engine is operatedon low-sulfur fuel 
(i.e., fuel with a sulfur concentration up to500 ppm) as compared to 
when it is operated on ultra low-sulfur fuel(i.e., fuel with a sulfur 
concentration less than 15 ppm).Exhaust-gas recirculation is not a 
sulfur-sensitive technology.
    Test fleet means the engine or group of engines that amanufacturer 
uses during certification to determine compliance withemission 
standards.
    Tier 1 engine means an engine subject to the Tier 1 
emissionstandards listed in Sec. 89.112(a).
    Tier 2 engine means an engine subject to the Tier 2 
emissionstandards listed in Sec. 89.112(a).

[[Page 45]]

    Tier 3 engine means an engine subject to the Tier 3emission 
standards listed in Sec. 89.112(a).
    Ultimate purchaser means, with respect to any new nonroadengine, new 
nonroad vehicle, or new nonroad equipment, the firstperson who in good 
faith purchases such new nonroad engine, nonroadvehicle, or nonroad 
equipment for purposes other than resale.
    United States means the States, the District of Columbia,the 
Commonwealth of Puerto Rico, the Commonwealth of the NorthernMariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Used solely for competition means exhibiting features thatare not 
easily removed and that would render its use other than incompetition 
unsafe, impractical, or highly unlikely.
    U.S.-directed production volume means the number of 
nonroadequipment, vehicle, or marine diesel engine units produced by 
amanufacturer for which the manufacturer has reasonable assurance 
thatsale was or will be made to ultimate purchasers in the United 
States.

[59 FR 31335, June 17, 1994, as amended at 61 FR 52102, Oct.4, 1996; 63 
FR 18998, Apr. 16, 1998; 63 FR 56996, Oct. 23, 1998; 65 FR73331, Dec. 
29, 1999; 67 FR 68339, Nov. 8, 2002; 69 FR 39212, June 29,2004; 70 FR 
40444, July 13, 2005; 72 FR 53126, Sept. 18, 2007]



Sec. 89.3  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to part 89.

AECD Auxiliary emission control device
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
CAA Clean Air Act
CAAA Clean Air Act Amendments of 1990
CI Compression-ignition
CO Carbon monoxide
CO2 Carbon dioxide
EGR Exhaust gas recirculation
EPA Environmental Protection Agency
FEL Family emission limit
FTP Federal Test Procedure
g/kW-hr Grams per kilowatt hour
HC Hydrocarbons
ICI Independent Commercial Importer
kW Kilowatt
NIST National Institute for Standards and Testing
NMHC Nonmethane hydrocarbon
NTIS National Technical Information Service
NO Nitric oxide
NO2 Nitrogen dioxide
NOX Oxides of nitrogen
O2 Oxygen
OEM Original equipment manufacturer
PM Particulate matter
SAE Society of Automotive Engineers
SEA Selective Enforcement Auditing
SI Spark-ignition
THC Total hydrocarbon
U.S.C. United States Code
VOC Volatile organic compounds

[59 FR 31335, June 17, 1994, as amended at 63 FR 56997, Oct.23, 1998]



Sec. 89.4  [Reserved]



Sec. 89.5  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end ofthe 
subpart. Tables are numbered consecutively by order of appearancein the 
appendix. The table title will indicate the model year (ifapplicable) 
and the topic.
    (b) Figures for each subpart appear in an appendix at the end ofthe 
subpart. Figures are numbered consecutively by order of appearancein the 
appendix. The figure title will indicate the model year (ifapplicable) 
and the topic.



Sec. 89.6  Reference materials.

    (a) Incorporation by reference. The documents in paragraph(b) of 
this section have been incorporated by reference. Theincorporation by 
reference was approved by the Director of the FederalRegister in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copiesmay be 
inspected at US EPA, OAR, 1200 Pennsylvania Ave., NW.,Washington, DC 
20460, or at the National Archives and RecordsAdministration (NARA). For 
information on the availability of thismaterial at NARA, call 202-741-
6030, or go to:http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (b) The following paragraphs and tables set forth the materialthat 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth materialfrom the 
American Society for Testing and Materials which has beenincorporated by 
reference. The first column lists the

[[Page 46]]

number andname of the material. The second column lists the section(s) 
of thispart, other than Sec. 89.6, in which the matter isreferenced. 
The second column is presented for information only andmay not be all 
inclusive. Copies of these materials may be obtainedfrom American 
Society for Testing and Materials, 100 Barr HarborDrive, West 
Conshohocken, PA 19428-2959.

------------------------------------------------------------------------
           Document number and name             40 CFR part89 reference
------------------------------------------------------------------------
ASTM D86-97:
    ``Standard Test Method for Distillation    Appendix A to Subpart D.
     of PetroleumProducts at Atmospheric
     Pressure''.
ASTM D93-97:
    ``Standard Test Methods for Flash Point    Appendix A to Subpart D.
     by Pensky-MartensClosed Cup Tester''.
ASTM D129-95:
    ``Standard Test Method for Sulfur in       Appendix A to Subpart D.
     Petroleum Products(General Bomb
     Method)''.
ASTM D287-92:
    ``Standard Test Method for API Gravity of  Appendix A toSubpart D
     Crude Petroleumand Petroleum Products''
     (Hydrometer Method).
ASTM D445-97:
    ``Standard Test Method for Kinematic       Appendix A to Subpart D.
     Viscosity ofTransparent and Opaque
     Liquids (the Calculation of Dynamic
     Viscosity)''.
ASTM D613-95:
    ``Standard Test Method for Cetane Number   Appendix A to Subpart D.
     of Diesel FuelOil''.
ASTM D1319-98:
    ``Standard Test Method for Hydrocarbon     Appendix A to Subpart D.
     Types in LiquidPetroleum Products by
     Fluorescent IndicatorAdsorption''.
ASTM D2622-98:
    ``Standard Test Method for Sulfur in       Appendix A to Subpart D.
     Petroleum Products byWavelength
     Dispersive X-ray
     FluorescenceSpectrometry''.
ASTM D5186-96:
    ``Standard Test Method for                 Appendix A to Subpart D.
     ``Determination of theAromatic Content
     and Polynuclear Aromatic Content of
     Diesel Fuels andAviation Tubine Fuels By
     Supercritical FluidChromatography''.
ASTM E29-93a:
    ``Standard Practice for Using Significant  89.120;89.207; 89.509.
     Digits in TestData to Determine
     Conformance with Specifications''.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth materialfrom the 
Society of Automotive Engineers which has been incorporatedby reference. 
The first column lists the number and name of thematerial. The second 
column lists the section(s) of this part, otherthan Sec. 89.6, in which 
the matter is referenced. Thesecond column is presented for information 
only and may not be allinclusive. Copies of these materials may be 
obtained from Society ofAutomotive Engineers International, 400 
Commonwealth Dr., Warrendale,PA 15096-0001.

------------------------------------------------------------------------
                                                           40 CFR part89
                Document number and name                     reference
------------------------------------------------------------------------
SAE J244 June 83:
    Recommended Practice for Measurement of Intake Air         89.416-96
     or Exhaust GasFlow of Diesel Engines...............
SAE J1937 November 89:
    Recommended Practice for Engine Testing with Low           89.327-96
     TemperatureCharge Air Cooler Systems in a
     Dynamometer Test Cell..............................
SAE Paper 770141:
    Optimization of a Flame Ionization Detector for            89.319-96
     Determination ofHydrocarbon in Diluted Automotive
     Exhausts, Glenn D.Reschke..........................
------------------------------------------------------------------------

    (3) California Air Resources Board Test Procedure. Thefollowing 
table sets forth material from the Title 13, California Codeof 
Regulations, Sections 2420-2427, as amended by CaliforniaAir Resources 
Board Resolution 92-2 and published in CaliforniaAir Resources Board 
mail out 93-42, September 1, 1993)which has been incorporated 
by reference. The first column lists thenumber and name of the material. 
The second column lists thesection(s) of this part, other than Sec. 
89.6, in which thematter is referenced. The second column is presented 
for informationonly and may not be all inclusive. Copies of

[[Page 47]]

these materials maybe obtained from California Air Resources Board, 
Haagen-SmitLaboratory, 9528 Telstar Avenue, El Monte, CA 91731-2990.

------------------------------------------------------------------------
                                                           40 CFR part89
                Document number and name                     reference
------------------------------------------------------------------------
California Regulations for New 1996 and Later Heavy-Duty       89.112-96
 Off-RoadDiesel Cycle Engines...........................       89.119-96
                                                               89.508-96
------------------------------------------------------------------------


[59 FR 31335, June 17, 1994, as amended at 63 FR 56997, Oct.23, 1998]



Sec. 89.7  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of theinformation 
submitted pursuant to this part is entitled toconfidential treatment as 
provided by part 2, subpart B of thischapter.
    (b) Any claim of confidentiality must accompany the information 
atthe time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part 
isconfidential, a manufacturer must indicate clearly the items 
ofinformation claimed confidential by marking, circling, 
bracketing,stamping, or otherwise specifying the confidential 
information.Furthermore, EPA requests, but does not require, that the 
submitteralso provide a second copy of its submittal from which 
allconfidential information has been deleted. If a need arises 
topublicly release nonconfidential information, EPA will assume that 
thesubmitter has accurately deleted the confidential information 
fromthis second copy.
    (d) If a claim is made that some or all of the informationsubmitted 
pursuant to this part is entitled to confidential treatment,the 
information covered by that confidentiality claim will bedisclosed by 
the Administrator only to the extent and by means of theprocedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at 
thetime of submission may be made available to the public by EPA 
withoutfurther notice to the submitter, in accordance withSec. 
2.204(c)(2)(i)(A) of this chapter.



  Sec. Appendix A to Subpart A of Part89--State Regulation of Nonroad 
                       Internal Combustion Engines

    This appendix sets forth the Environmental Protection 
Agency's(EPA's) interpretation of the Clean Air Act regarding the 
authority ofstates to regulate the use and operation of nonroad engines.
    EPA believes that states are not precluded under section 209 
fromregulating the use and operation of nonroad engines, such 
asregulations on hours of usage, daily mass emission limits, or 
sulfurlimits on fuel; nor are permits regulating such operations 
precluded,once the engine is no longer new. EPA believes that states 
areprecluded from requiring retrofitting of used nonroad engines 
exceptthat states are permitted to adopt and enforce any such 
retrofittingrequirements identical to California requirements which have 
beenauthorized by EPA under section 209 of the Clean Air Act.

[62 FR 67736, Dec. 30, 1997]



        Subpart B_Emission Standards and CertificationProvisions



Sec. 89.101  Applicability.

    (a) The requirements of subpart B of this part are applicable toall 
new nonroad compression-ignition engines subject to the provisionsof 
subpart A of this part 89, pursuant to the schedule delineated inSec. 
89.102.
    (b) In a given model year, you may ask us to approve the use 
ofprocedures for certification, labeling, reporting, and 
recordkeepingspecified in 40 CFR part 1039 or 1068 instead of the 
comparableprocedures specified in this part 89. We will approve the 
request aslong as it does not prevent us from ensuring that you fully 
complywith the intent of this part.

[72 FR 53127, Sept. 18, 2007]

[[Page 48]]



Sec. 89.102  Effective dates, optional inclusion, flexibility for equipmentmanufacturers.

    (a) This subpart applies to all engines described inSec. 89.101 
with the following power rating and manufacturedafter the following 
dates:
    (1) Less than 19 kW and manufactured on or after January 1, 2000;
    (2) Greater than or equal to 19 kW but less than 37 kW 
andmanufactured on or after January 1, 1999;
    (3) Greater than or equal to 37 kW but less than 75 kW 
andmanufactured on or after January 1, 1998;
    (4) Greater than or equal to 75 kW but less than 130 kW 
andmanufactured on or after January 1, 1997;
    (5) Greater than or equal to 130 kW but less than or equal to 560kW 
and manufactured on or after January 1, 1996;
    (6) Greater than 560 kW and manufactured on or after January 1,2000.
    (b) A manufacturer can optionally certify engines manufactured upto 
one calendar year prior to the effective date of mandatorycertification 
to earn emission credits under the averaging, banking,and trading 
program. Such optionally certified engines are subject toall provisions 
relating to mandatory certification and enforcementdescribed in this 
part.
    (c) Engines meeting the voluntary standards described inSec. 
89.112(f) may be designated as Blue Sky Series enginesthrough the 2004 
model year.
    (d) Implementation flexibility for equipment and 
vehiclemanufacturers and post-manufacture marinizers. Nonroad 
equipmentand vehicle manufacturers and post-manufacture marinizers may 
take anyof the otherwise prohibited actions identified inSec. 
89.1003(a)(1) and (b)(4) with respect to nonroadequipment and vehicles 
and marine diesel engines, subject to therequirements of paragraph (e) 
of this section. The followingallowances apply separately to each engine 
power category subject tostandards under Sec. 89.112:
    (1) Percent-of-production allowances. (i) Equipment ratedat or above 
37 kW. For nonroad equipment and vehicles with enginesrated at or above 
37 kW, a manufacturer may take any of the actionsidentified in Sec. 
89.1003(a)(1) for a portion of its U.S.-directed production volume of 
such equipment and vehicles during theseven years immediately following 
the date on which Tier 2 enginestandards first apply to engines used in 
such equipment and vehicles,provided that the seven-year sum of these 
portions in each year, asexpressed as a percentage for each year, does 
not exceed 80, andprovided that all such equipment and vehicles or 
equipment containTier 1 or Tier 2 engines;
    (ii) Equipment rated under 37 kW. For nonroad equipment andvehicles 
and marine diesel engines with engines rated under 37 kW, amanufacturer 
may take any of the actions identified inSec. 89.1003(a)(1) for a 
portion of its U.S.-directedproduction volume of such equipment and 
vehicles during the sevenyears immediately following the date on which 
Tier 1 engine standardsfirst apply to engines used in such equipment and 
vehicles, providedthat the seven-year sum of these portions in each 
year, as expressedas a percentage for each year, does not exceed 80.
    (2) Small volume allowances. A nonroad equipment or 
vehiclemanufacturer or post-manufacture marinizer may exceed the 
productionpercentages in paragraph (d)(1) of this section, provided that 
in eachregulated power category the manufacturer's total of excepted 
nonroadequipment and vehicles and marine diesel engines:
    (i) Over the years in which the percent-of-production 
allowanceapplies does not exceed 100 units times the number of years in 
whichthe percent-of-production allowance applies; and
    (ii) Does not exceed 200 units in any year; and
    (iii) Does not use engines from more than one engine family, or,for 
excepted equipment vehicles, and marine diesel engines usingengines not 
belonging to any engine family, from more than one enginemanufacturer. 
For purposes of this paragraph (d)(2)(iii), enginefamily refers to 
engines that have common characteristics as describedin Sec. 89.116.
    (3) Inclusion of previous-tier engines. Nonroad equipmentand 
vehicles and marine diesel engines built with previous tier 
ornoncertified engines under the existing inventory provisions ofSec. 
89.1003(b)(4) need not be included in

[[Page 49]]

determiningcompliance with paragraphs (d)(1) and (d)(2) of this section.
    (e) Recordkeeping and calculation to verify compliance. Thefollowing 
shall apply to nonroad equipment or vehicle manufacturersand post-
manufacture marinizers who produce excepted equipment orvehicles or 
marine diesel engines under the provisions of paragraph(d) of this 
section:
    (1) For each power category in which excepted nonroad equipment 
orvehicles or marine diesel engines are produced, a calculation toverify 
compliance with the requirements of paragraph (d) of thissection shall 
be made by the nonroad equipment or vehicle manufactureror post-
manufacture marinizer. This calculation shall be made no laterthan 
December 31 of the year following the last year in whichallowances are 
used, and shall be based on actual productioninformation from the 
subject years. If both the percent-of-productionand small volume 
allowances have been exceeded, then the manufactureris in violation of 
section 203 of the Act and Sec. 89.1003,except as provided under 
paragraphs (f) and (h) of this section.
    (2) A nonroad equipment or vehicle manufacturer or post-manufacture 
marinizer shall keep records of all nonroad equipment andvehicles and 
marine diesel engines excepted under the provisions ofparagraph (d) of 
this section, for each power category in whichexceptions are taken. 
These records shall include equipment and enginemodel numbers, serial 
numbers, and dates of manufacture, and enginerated power. In addition, 
the manufacturer shall keep recordssufficient to demonstrate the 
verifications of compliance required inparagraph (e)(1) of this section. 
All records shall be kept until atleast two full years after the final 
year in which allowances areavailable for each power category, and shall 
be made available to EPAupon request.
    (f) Hardship relief. Nonroad equipment and vehiclemanufacturers and 
post-manufacture marinizers may take any of theotherwise prohibited 
actions identified in Sec. 89.1003(a)(1) if approved by the 
Administrator, and subject to the followingrequirements:
    (1) Application for relief must be submitted to the EnginePrograms 
and Compliance Division of the EPA in writing prior to theearliest date 
in which the applying manufacturer would be in violationof Sec. 
89.1003. The manufacturer must submit evidenceshowing that the 
requirements for approval have been met.
    (2) The applying manufacturer must not be the manufacturer of 
theengines used in the equipment for which relief is sought. 
Thisrequirement does not apply to post-manufacture marinizers.
    (3) The conditions causing the impending violation must not 
besubstantially the fault of the applying manufacturer.
    (4) The conditions causing the impending violation must be suchthat 
the applying manufacturer will experience serious economichardship if 
relief is not granted.
    (5) The applying manufacturer must demonstrate that no 
allowancesunder paragraph (d) of this section will be available to avoid 
theimpending violation.
    (6) Any relief granted must begin within one year after 
theimplementation date of the standard applying to the engines being 
usedin the equipment, or to the marine diesel engines, for which relief 
isrequested, and may not exceed one year in duration.
    (7) The Administrator may impose other conditions on the grantingof 
relief including provisions to recover the lost environmentalbenefit.
    (g) Allowance for the production of engines. Enginemanufacturers may 
take any of the otherwise prohibited actionsidentified in Sec. 
89.1003(a)(1) with regard to uncertifiedengines, Tier 1 engines, or Tier 
2 engines, as appropriate, if theengine manufacturer has received 
written assurance from the equipmentmanufacturer that the engine is 
required to meet the demand forengines created under paragraph (d), (f), 
or (h) of this section.
    (h) Alternative Flexibility for Post-Manufacture Marinizers.Post-
manufacture marinizers may elect to delay the effective date ofthe Tier 
1 standards in Sec. 89.112 for marine dieselengines rated under 37 kW 
by one year, instead of using the provisionsof paragraphs (d)

[[Page 50]]

and (f) of this section. Post-manufacturemarinizers wishing to take 
advantage of this provision must inform theDirector of the Engine 
Programs and Compliance Division of theirintent to do so in writing 
before the date that the standards wouldotherwise take effect.
    (i) Additional exemptions for technical or engineeringhardship. You 
may request additional engine allowances underparagraph (d)(1) of this 
section for 56-560 kW power categoriesor, if you are a small equipment 
manufacturer, under paragraph (d)(2)of this section for engines at or 
above 37 and below 75 kW. However,you may use these extra allowances 
only for those equipment models forwhich you, or an affiliated company, 
do not also produce the engine.After considering the circumstances, we 
may permit you to introduceinto U.S. commerce equipment with such 
engines that do not comply withTier 3 emission standards, as follows:
    (1) We may approve additional exemptions if extreme and 
unusualcircumstances that are clearly outside your control and that 
could nothave been avoided with reasonable discretion have resulted 
intechnical or engineering problems that prevent you from meeting 
therequirements of this part. You must show that you exercised 
prudentplanning and have taken all reasonable steps to minimize the 
scope ofyour request for additional allowances.
    (2) To apply for exemptions under this paragraph (i), send 
theDesignated Compliance Officer and the Designated Enforcement Officer 
awritten request as soon as possible before you are in violation. Inyour 
request, include the following information:
    (i) Describe your process for designing equipment.
    (ii) Describe how you normally work cooperatively or 
concurrentlywith your engine supplier to design products.
    (iii) Describe the engineering or technical problems causing youto 
request the exemption and explain why you have not been able tosolve 
them. Describe the extreme and unusual circumstances that led tothese 
problems and explain how they were unavoidable.
    (iv) Describe any information or products you received from 
yourengine supplier related to equipment design--such as 
writtenspecifications, performance data, or prototype engines--and 
whenyou received it.
    (v) Compare the design processes of the equipment model for whichyou 
need additional exemptions and that for other models for which youdo not 
need additional exemptions. Explain the technical differencesthat 
justify your request.
    (vi) Describe your efforts to find and use other compliantengines, 
or otherwise explain why none is available.
    (vii) Describe the steps you have taken to minimize the scope ofyour 
request.
    (viii) Include other relevant information. You must give us 
otherrelevant information if we ask for it.
    (ix) Estimate the increased percent of production you need foreach 
equipment model covered by your request, as described inparagraph (i)(3) 
of this section. Estimate the increased number ofallowances you need for 
each equipment model covered by your request,as described in paragraph 
(i)(4) of this section.
    (3) We may approve your request to increase the allowances 
underparagraph (d)(1) of this section, subject to the 
followinglimitations:
    (i) The additional allowances will not exceed 50 percent for 
eachpower category.
    (ii) You must use up the allowances under paragraph (d)(1) of 
thissection before using any additional allowance under this 
paragraph(i).
    (iii) Any allowances we approve under this paragraph (i)(3) expire24 
months after the provisions of this section start for a given 
powercategory. You may use these allowances only for the specific 
equipmentmodels covered by your request.
    (4) We may approve your request to increase the allowances for 
the37-75 kW power category under paragraph (d)(2) of this 
section,subject to the following limitations:
    (i) You are eligible for additional allowances under thisparagraph 
(i)(4)

[[Page 51]]

only if you are a small equipment manufacturerand you do not use the 
provisions of paragraph (i)(3) of this sectionto obtain additional 
allowances for the 37-75 kW powercategory.
    (ii) You must use up all the available allowances for the37-75 kW 
power category under paragraph (d)(2) of this sectionin a given year 
before using any additional allowances under thisparagraph (i)(4).
    (iii) Base your request only on equipment you produce with enginesat 
or above 37 kW and below 75 kW. You may use any additionalallowances 
only for equipment you produce with engines at or above 37kW and below 
75 kW.
    (iv) Any allowances we approve under this paragraph (i)(4) expire24 
months after the provisions of this section start for this 
powercategory. These additional allowances are not subject to the 
annuallimits specified in paragraph (d)(2) of this section. You may 
usethese allowances only for the specific equipment models covered 
byyour request.
    (v) The total allowances under paragraph (d)(2) of this sectionfor 
the 37-75 kW power category will not exceed 700 units. Thetotal 
allowances under this paragraph (i)(4) follow the requirementsunder 
paragraph (d)(2) of this section for the 37-75 kW powercategory and will 
not exceed 200 units. Therefore, the total maximumallowances for the 37-
75 kW power category will not exceed 900units.
    (5) For purposes of this paragraph (i), small equipmentmanufacturer 
means an equipment manufacturer that had annual U.S.-directed production 
volume of equipment using nonroad diesel enginesbetween 37 and 75 kW of 
no more than 3,000 units in 2002 and allearlier calendar years, and has 
750 or fewer employees (500 or feweremployees for nonroad equipment 
manufacturers that produce noconstruction equipment or industrial 
trucks). For manufacturers ownedby a parent company, the production 
limit applies to the production ofthe parent company and all its 
subsidiaries and the employee limitapplies to the total number of 
employees of the parent company and allits subsidiaries.
    (6) The following provisions for adjusted flexibilities for Tier 
4engines apply to equipment manufacturers that are granted 
additionalexemptions for technical or engineering hardship:
    (i) If you use the additional allowance under this paragraph (i)you 
shall forfeit percent of production flexibility plus technical 
orengineering hardship exemptions available for Tier 4 engines in 
theamounts shown in Table 1 of this section.
    (ii) Table 1 of this section shows the percent of 
productionflexibility and technical or engineering hardship exemptions 
that youmust forfeit for Tier 4 engines. The amount of Tier 4 
flexibilityforfeited by each equipment manufacturer depends on the 
percent ofproduction flexibility used for Tier 2 engines and the 
technical orengineering hardship exemptions granted for Tier 3 engines 
in theproportions shown in Table 1. For example, if you used 45 percent 
ofyour production flexibility for Tier 2 engines, you must forfeit 
2percent of your production flexibility for Tier 4 engines for every 
1percent of technical or engineering hardship flexibility granted 
forTier 3 engines. In addition you must also forfeit 1 percent of 
anytechnical or engineering hardship exemptions available for Tier 
4engines for every 1 percent technical or engineering hardshipexemptions 
available for Tier 3 engines. If you use the Tier 3technical or 
engineering hardship allowances for 5 percent of yourequipment in each 
of two different years, you have used a totalallowance of 10 percent. 
Therefore you must forfeit a total of 20percent of production 
flexibility for Tier 4 engines plus 10 percentof any technical or 
engineering hardship exemptions available for Tier4 engines.

      Table 1 ofSec.  89.102--Adjustments to Tier 4 Flexibilities
------------------------------------------------------------------------
                                               Percent of
                                              forfeitTier    Percent of
Percent of use Tier 2 production flexibility       4        forfeit Tier
                                               production     4 tech./
                                              flexibility  eng.exemption
------------------------------------------------------------------------
Greater than 0% and up to 20%...............            0             1
Greater than 20% and up to 40%..............            1             1
Greater than 40% and up to 60%..............            2             1
Greater than 60% and up to 80%..............            3             1
------------------------------------------------------------------------

    (iii) Because the Tier 3 and Tier 4 rules have different 
powercategory

[[Page 52]]

ranges, the availability of technical relief will befurther adjusted 
based on the sales volume by power category. Table 2of this section 
shows the applicable power categories for Tier 3 andTier 4. The Tier 3 
power categories of 37kW to 75kW and 75kW to 130kWcorrespond to the Tier 
4 power category of 56kW to 130kW. For the Tier3 equipment in the 37 to 
75kW category, you must only use the salesvolume for equipment that uses 
engines with a rated power greater than56kW. For example, if you have a 
Tier 3 piece of equipment that uses a40 kW engine, the sales of the 
equipment are counted in the Tier 4power category of 19kW to 56kW. If 
you have a Tier 3 piece ofequipment that uses a 60kW engine, the sales 
of the equipment arecounted in the Tier 4 power category of 56kW to 
130kW. The Tier 3power categories of 130kW to 225kW, 225kW to 450kW and 
450kW to 560kWcorrespond to the Tier 4 power category of 130kW to 560kW. 
You willneed to sum the sales of the Tier 3 power categories that 
correspondto the Tier 4 power category during each calendar year in 
which Tier 3technical relief is used. The sum of all the Tier 3 units 
that areproduced and exempted by the technical relief divided by the sum 
ofall the Tier 3 units sold in the corresponding Tier 4 power 
categorywill determine the percentage of Tier 4 flexibility affected. 
Forexample, if you produce 50 units using Tier 3 technical relief in 
therange of 130kW to 225kW, and you produce 50 units using Tier 
3technical relief in the range of 225 to 450kW, and no units areproduced 
in the 450kW to 560kW range, and your overall sales volumefor the power 
ranges of 130kW to 560kW in Tier 3 is 400 units, theamount of Tier 3 
technical relief used is 100/400 or 25 percent.Because you forfeit 1 
percent of your Tier 4 technical relief forevery 1 percent of Tier 3 
technical relief used, then you will lose 25percent of your Tier 4 
technical relief in the 130kW to 560kW powerrange category. If you used 
45 percent of your production flexibilityfor Tier 2 engines, you must 
forfeit 2 percent of productionflexibility for Tier 4 engines for every 
1 percent of Tier 3 technicalrelief. Therefore, you will forfeit 50 
percent of your Tier 4production allowance in the 130kW to 560kW power 
range category.

Table 2 ofSec.  89.102--Corresponding Tier 3 and Tier 4 PowerCategories
------------------------------------------------------------------------
         Tier 3  power categories             Tier 4  power categories
------------------------------------------------------------------------
37<=kW<75\*\..............................  19<=kW<56
37<=kW<75\**\, 75<=kW<130.................  56<=kW<130
130<=kW<225, 225<=kW<450,450<=kW<560......  130<=kW<=560
------------------------------------------------------------------------
\*\ Applies only to use of engines rated between 37kW and56kW by small
  volume equipment manufacturers.
\**\ Includes only equipment that uses engines with a ratedpower greater
  than 56kw.

    (iv) Manufacturers using allowances under this paragraph (i) 
mustcomply with the notification and reporting requirements specified 
inparagraph (i)(7) of this section.
    (7) Notification and reporting. You must notify us of your intentto 
use the technical relief provisions of this paragraph (i) and sendus an 
annual report to verify that you are not exceeding theallowances, as 
follows:
    (i) Before the first year you intend to use the provisions of 
thissection, send the Designated Compliance Officer and the 
DesignatedEnforcement Officer a written notice of your intent, 
including:
    (A) Your company's name and address, and your parent company'sname 
and address, if applicable.
    (B) Whom to contact for more information.
    (C) The calendar years in which you expect to use the 
exemptionprovisions of this section.
    (D) The name and address of the company that produces the enginesyou 
will be using for the equipment exempted under this section.
    (E) Your best estimate of the number of units in each powercategory 
you will produce under this section and whether you intend tocomply 
under paragraph (d)(1) or (d)(2) of this section.
    (F) The number of units in each power category you have sold 
inprevious calendar years under paragraph (d) of this section.
    (ii) For each year that you use the provisions of this section,send 
the Designated Compliance Officer and the Designated EnforcementOfficer 
a written report by March 31 of the following

[[Page 53]]

year.Include in your report the total number of engines you sold in 
thepreceding year for each power category, based on actual U.S.-
directedproduction information. Also identify the percentages of U.S.-
directedproduction that correspond to the number of units in each 
powercategory and the cumulative numbers and percentages of units for 
allthe units you have sold under this section for each power 
category.You may omit the percentage figures if you include in the 
report astatement that you will not be using the percent-of-
productionallowances in paragraph (d) of this section.
    (8) Recordkeeping. Keep the following records of allequipment with 
exempted engines you produce under this paragraph (i)for at least five 
full years after the final year in which allowancesare available for 
each power category:
    (i) The model number, serial number, and the date of manufacturefor 
each engine and piece of equipment.
    (ii) The maximum power of each engine.
    (iii) The total number or percentage of equipment with 
exemptedengines, as described in paragraph (d) of this section and 
alldocumentation supporting your calculation.
    (iv) The notifications and reports we require under paragraph (i)(7) 
of this section.
    (9) Equipment Labeling. Any engine produced under thisparagraph (i) 
must meet the labeling requirements of 40 CFR 89.110,but add the 
following statement instead of the compliance statement in40 CFR 89.110 
(b)(10): THIS ENGINE MEETS U.S. EPA EMISSION STANDARDSUNDER 40 CFR 
89.102. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSEOTHER THAN FOR 
THE EQUIPMENT FLEXIBILITY PROVISIONS OF 40 CFR 89.102MAY BE A VIOLATION 
OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.
    (10) Enforcement. Producing more exempted engines orequipment than 
we allow under this paragraph (i) or installing enginesthat do not meet 
the applicable Tier 1 emission standards described inSec. 89.112 
violates the prohibitions inSec. 89.1003(a)(1). You must give us the 
records we requireunder this paragraph (i) if we ask for them (seeSec. 
89.1003(a)(2)).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
56997, Oct. 23, 1998; 70 FR 40444, July 13, 2005; 72 FR 53127,Sept. 18, 
2007; 72 FR 72956, Dec. 26, 2007]



Sec. 89.103  Definitions.

    The definitions in subpart A of part 89 apply to this subpart. 
Allterms not defined herein or in subpart A have the meaning given 
themin the Act.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.104  Useful life, recall, and warranty periods.

    (a) The useful life is based on the rated power and rated speed 
ofthe engine.
    (1) For all engines rated under 19 kW, and for constant speedengines 
rated under 37 kW with rated speeds greater than or equal to3,000 rpm, 
the useful life is a period of 3,000 hours or five years ofuse, 
whichever first occurs.
    (2) For all other engines rated at or above 19 kW and under 37 
kW,the useful life is a period of 5,000 hours or seven years of 
use,whichever first occurs.
    (3) For all engines rated at or above 37 kW, the useful life is 
aperiod of 8,000 hours of operation or ten years of use, whicheverfirst 
occurs.
    (b) Engines are subject to recall testing for a period based onthe 
rated power and rated speed of the engines. However, in a recall,engines 
in the subject class or category would be subject to recallregardless of 
actual years or hours of operation.
    (1) For all engines rated under 19 kW, and for constant speedengines 
rated under 37 kW with rated speeds greater than or equal to3,000 rpm, 
the engines are subject to recall testing for a period of2,250 hours or 
four years of use, whichever first occurs.
    (2) For all other engines rated at or above 19 kW and under 37 
kW,the engines are subject to recall for a period of 3,750 hours or 
fiveyears of use, whichever first occurs.
    (3) For all engines rated at or above 37 kW, the engines aresubject 
to recall for a period of 6,000 hours of operation or sevenyears of use, 
whichever first occurs.

[[Page 54]]

    (c) The warranty periods for warranties imposed by the CleanAir Act 
and Sec. 89.1007 for all engines rated under 19 kW,and for constant 
speed engines rated under 37 kW with rated speedsgreater than or equal 
to 3,000 rpm, are 1,500 hours of operation ortwo years of use, whichever 
first occurs. For all other engines, thewarranty periods for warranties 
imposed by the Clean Air Act andSec. 89.1007 are 3,000 hours of 
operation or five years ofuse, whichever first occurs.
    (d) Manufacturers may apply to the Administrator for approval fora 
shorter useful life period for engines that are subject to severeservice 
in seasonal equipment, or are designed specifically for loweruseful life 
hours to match equipment life. Such an application must bemade prior to 
certification.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
56998, Oct. 23, 1998]



Sec. 89.105  Certificate of conformity.

    Every manufacturer of a new nonroad compression-ignition enginemust 
obtain a certificate of conformity covering the engine family, 
asdescribed in Sec. 89.116. The certificate of conformity mustbe 
obtained from the Administrator prior to selling, offering forsale, 
introducing into commerce, or importing into the United Statesthe new 
nonroad compression-ignition engine for each model year.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.106  Prohibited controls.

    (a) An engine may not be equipped with an emission control systemfor 
the purpose of complying with emission standards if such systemwill 
cause or contribute to an unreasonable risk to public health,welfare, or 
safety in its operation or function.
    (b) You may not design your engines with emission-control 
devices,systems, or elements of design that cause or contribute to 
anunreasonable risk to public health, welfare, or safety whileoperating. 
For example, this would apply if the engine emits a noxiousor toxic 
substance it would otherwise not emit that contributes tosuch an 
unreasonable risk.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998; 
67 FR 68339, Nov. 8, 2002]



Sec. 89.107  Defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, ``defeat device''means any device, 
system, or element of design which senses operationoutside normal 
emission test conditions and reduces emission controleffectiveness.
    (1) Defeat device includes any auxiliary emission control 
device(AECD) that reduces the effectiveness of the emission control 
systemunder conditions which may reasonably be expected to be 
encountered innormal operation and use unless such conditions are 
included in thetest procedure.
    (2) Defeat device does not include such items which either 
operateonly during engine starting or are necessary to protect the 
engine (orequipment in which it is installed) against damage or accident 
duringits operation.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.108  Adjustable parameters, requirements.

    (a) Nonroad engines equipped with adjustable parameters mustcomply 
with all requirements of this subpart for any adjustment in 
thephysically adjustable range.
    (b) An operating parameter is not considered adjustable if it 
ispermanently sealed or otherwise not normally accessible using 
ordinarytools.
    (c) The Administrator may require that adjustable parameters beset 
to any specification within its adjustable range forcertification, 
selective enforcement audit, or in-use testing todetermine compliance 
with the requirements of this subpart.
    (d) For engines that use noncommercial fuels significantlydifferent 
than the specified test fuel of the same type, themanufacturer may ask 
to use the parameter-adjustment provisions of 40CFR 1039.615 instead of 
those in this section. Engines certified underthis

[[Page 55]]

paragraph (d) must be in a separate engine family. See 40 CFR1039.801 
for the definition of ``noncommercial fuels''.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998, 
as amended at 72 FR 53129, Sept. 18, 2007]



Sec. 89.109  Maintenance instructions and minimum allowable maintenanceintervals.

    (a) The manufacturer must furnish or cause to be furnished to 
theultimate purchaser of each new nonroad engine subject to 
standardsunder this part written instructions for the maintenance needed 
toensure proper functioning of the emission control system. 
Paragraphs(b) through (h) of this section do not apply to Tier 1 engines 
withrated power at or above 37 kW.
    (b) Maintenance performed on equipment, engines, subsystems 
orcomponents used to determine exhaust emission deterioration factors 
isclassified as either emission-related or nonemission-related and 
eachof these can be classified as either scheduled or 
unscheduled.Further, some emission-related maintenance is also 
classified ascritical emission-related maintenance.
    (c) This paragraph (c) specifies emission-related 
scheduledmaintenance for purposes of obtaining durability data for 
nonroadengines. The maintenance intervals specified below are 
minimumintervals:
    (1) All emission-related scheduled maintenance for purposes 
ofobtaining durability data must occur at the same or longer hours ofuse 
intervals as those specified in the manufacturer's 
maintenanceinstructions furnished to the ultimate purchaser of the 
engine underparagraph (a) of this section. This maintenance schedule may 
beupdated as necessary throughout the testing of the engine, 
providedthat no maintenance operation is deleted from the maintenance 
scheduleafter the operation has been performed on the test equipment 
orengine.
    (2) Any emission-related maintenance which is performed onequipment, 
engines, subsystems, or components must be technologicallynecessary to 
ensure in-use compliance with the emission standards. Themanufacturer 
must submit data which demonstrate to the Administratorthat all of the 
emission-related scheduled maintenance which is to beperformed is 
technologically necessary. Scheduled maintenance must beapproved by the 
Administrator prior to being performed or beingincluded in the 
maintenance instructions provided to the purchasersunder paragraph (a) 
of this section.
    (i) The Administrator may require longer maintenance intervalsthan 
those listed in paragraphs (c)(3) and (c)(4) of this sectionwhere the 
listed intervals are not technologically necessary.
    (ii) The Administrator may allow manufacturers to specify 
shortermaintenance intervals than those listed in paragraphs (c)(3) and 
(c)(4) of this section where technologically necessary for engines 
ratedunder 19 kW, or for constant speed engines rated under 37 kW 
withrated speeds greater than or equal to 3,000 rpm.
    (3) The adjustment, cleaning, repair, or replacement of itemslisted 
in paragraphs (c)(3)(i) through (c)(3)(iii) of this sectionshall occur 
at 1,500 hours of use and at 1,500-hour intervalsthereafter.
    (i) Exhaust gas recirculation system-related filters and coolers.
    (ii) Positive crankcase ventilation valve.
    (iii) Fuel injector tips (cleaning only).
    (4) The adjustment, cleaning and repair of items in paragraphs 
(c)(4)(i) through (c)(4)(vii) of this section shall occur at 3,000 
hoursof use and at 3,000-hour intervals thereafter for nonroad 
compression-ignition engines rated under 130 kW, or at 4,500-hour 
intervalsthereafter for nonroad compression-ignition engines rated at or 
above130 kW.
    (i) Fuel injectors.
    (ii) Turbocharger.
    (iii) Electronic engine control unit and its associated sensorsand 
actuators.
    (iv) Particulate trap or trap-oxidizer system (including 
relatedcomponents).
    (v) Exhaust gas recirculation system (including all relatedcontrol 
valves and tubing) except as otherwise provided in paragraph(c)(3)(i) of 
this section.
    (vi) Catalytic convertor.
    (vii) Any other add-on emission-related component (i.e., acomponent

[[Page 56]]

whose sole or primary purpose is to reduce emissions orwhose failure 
will significantly degrade emission control and whosefunction is not 
integral to the design and performance of the engine).
    (d) Scheduled maintenance not related to emissions which 
isreasonable and technologically necessary (e.g., oil change, oil 
filterchange, fuel filter change, air filter change, cooling 
systemmaintenance, adjustment of idle speed, governor, engine bolt 
torque,valve lash, injector lash, timing, lubrication of the exhaust 
manifoldheat control valve, etc.) may be performed on durability 
vehicles atthe least frequent intervals recommended by the manufacturer 
to theultimate purchaser, (e.g., not the intervals recommended for 
severeservice).
    (e) Adjustment of engine idle speed on emission data engines maybe 
performed once before the low-hour emission test point. Any otherengine, 
emission control system, or fuel system adjustment, repair,removal, 
disassembly, cleaning, or replacement on emission datavehicles shall be 
performed only with advance approval of theAdministrator.
    (f) Equipment, instruments, or tools may not be used to 
identifymalfunctioning, maladjusted, or defective engine components 
unless thesame or equivalent equipment, instruments, or tools will be 
availableto dealerships and other service outlets and:
    (1) Are used in conjunction with scheduled maintenance on 
suchcomponents; or
    (2) Are used subsequent to the identification of a vehicle orengine 
malfunction, as provided in paragraph (e) of this section foremission 
data engines; or
    (3) Specifically authorized by the Administrator.
    (g) All test data, maintenance reports, and required 
engineeringreports shall be compiled and provided to the Administrator 
inaccordance with Sec. 89.124.
    (h)(1) The components listed in paragraphs (h)(1)(i) through 
(h)(1)(vi) of this section are defined as critical emission-
relatedcomponents.
    (i) Catalytic converter.
    (ii) Electronic engine control unit and its associated sensors 
andactuators.
    (iii) Exhaust gas recirculation system (including all 
relatedfilters, coolers, control valves, and tubing).
    (iv) Positive crankcase ventilation valve.
    (v) Particulate trap or trap-oxidizer system.
    (vi) Any other add-on emission-related component (i.e., acomponent 
whose sole or primary purpose is to reduce emissions orwhose failure 
will significantly degrade emission control and whosefunction is not 
integral to the design and performance of the engine).
    (2) All critical emission-related scheduled maintenance must havea 
reasonable likelihood of being performed in use. The manufacturermust 
show the reasonable likelihood of such maintenance beingperformed in-
use. Critical emission-related scheduled maintenanceitems which satisfy 
one of the conditions defined in paragraphs (h)(2)(i) through (h)(2)(vi) 
of this section will be accepted as having areasonable likelihood of 
being performed in use.
    (i) Data are presented which establish for the Administrator 
aconnection between emissions and vehicle performance such that 
asemissions increase due to lack of maintenance, vehicle performancewill 
simultaneously deteriorate to a point unacceptable for typicaloperation.
    (ii) Survey data are submitted which adequately demonstrate to 
theAdministrator with an 80 percent confidence level that 80 percent 
ofsuch engines already have this critical maintenance item performed in-
use at the recommended interval(s).
    (iii) A clearly displayed visible signal system approved by 
theAdministrator is installed to alert the equipment operator 
thatmaintenance is due. A signal bearing the message 
``maintenanceneeded'' or ``check engine,'' or a similar messageapproved 
by the Administrator, shall be actuated at the appropriateusage point or 
by component failure. This signal must be continuouswhile the engine is 
in operation and not be easily eliminated withoutperformance of the 
required maintenance.

[[Page 57]]

Resetting the signalshall be a required step in the maintenance 
operation. The method forresetting the signal system shall be approved 
by the Administrator.The system must not be designed to deactivate upon 
the end of theuseful life of the engine or thereafter.
    (iv) A manufacturer may desire to demonstrate through a surveythat a 
critical maintenance item is likely to be performed without avisible 
signal on a maintenance item for which there is no prior in-use 
experience without the signal. To that end, the manufacturer mayin a 
given model year market up to 200 randomly selected vehicles percritical 
emission-related maintenance item without such visiblesignals, and 
monitor the performance of the critical maintenance itemby the owners to 
show compliance with paragraph (h)(2)(ii) of thissection. This option is 
restricted to two consecutive model years andmay not be repeated until 
any previous survey has been completed. Ifthe critical maintenance 
involves more than one engine family, thesample will be sales weighted 
to ensure that it is representative ofall the families in question.
    (v) The manufacturer provides the maintenance free of charge, 
andclearly informs the customer that the maintenance is free in 
theinstructions provided under paragraph (a) of this section.
    (vi) The manufacturer uses any other method which theAdministrator 
approves as establishing a reasonable likelihood thatthe critical 
maintenance will be performed in-use.
    (3) Visible signal systems used under paragraph (h)(2)(iii) ofthis 
section are considered an element of design of the emissioncontrol 
system. Therefore, disabling, resetting, or otherwiserendering such 
signals inoperative without also performing theindicated maintenance 
procedure is a prohibited act.

[63 FR 56999, Oct. 23, 1998]



Sec. 89.110  Emission control information label.

    (a) The manufacturer must affix at the time of manufacture 
apermanent and legible label identifying each nonroad engine. The 
labelmust meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed 
withoutdestroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal 
engineoperation and not normally requiring replacement during engine 
life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average 
personafter the engine is installed in the equipment. A supplemental 
labelmeeting all the requirements of this section may be attached to 
alocation other than the engine, in cases where the required label 
mustbe obscured after the engine is installed in the equipment.
    (b) The label must contain the following information:
    (1) The heading ``Important Engine Information;''
    (2) The full corporate name and trademark of the manufacturer;though 
the label may identify another company and use its trademarkinstead of 
the manufacturer's if the provisions ofSec. 89.1009 are met.
    (3) EPA standardized engine family designation;
    (4) Engine displacement;
    (5) Advertised power;
    (6) Engine tuneup specifications and adjustments. These 
shouldindicate the proper transmission position during tuneup, 
andaccessories (for example, air conditioner), if any, that should be 
inoperation;
    (7) Fuel requirements;
    (8) Date of manufacture (month and year). The manufacturer may, 
inlieu of including the date of manufacture on the engine label,maintain 
a record of the engine manufacture dates. The manufacturershall provide 
the date of manufacture records to the Administratorupon request;
    (9) Family emission limits (FELs) if applicable;
    (10) The statement: ``This engine conforms to [model year]U.S. EPA 
regulations large nonroad compression- ignitionengines;''
    (11) Engines belonging to an engine family that has been certifiedas 
a constant-speed engine using the test cycle specified in Table 2of 
appendix B to subpart E of this part must contain the

[[Page 58]]

statementon the label: ``constant-speed only''; and
    (12) Engines meeting the voluntary standards described inSec. 
89.112(f)(1) to be designated as Blue Sky Seriesengines must contain the 
statement on the label: ``Blue SkySeries''.
    (c) Other information concerning proper maintenance and use 
orindicating compliance or noncompliance with other standards may 
beindicated on the label.
    (d) Each engine must have a legible unique engine 
identificationnumber permanently affixed to or engraved on the engine.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57000, Oct. 23, 1998; 70 FR 40444, July 13, 2005]



Sec. 89.111  Averaging, banking, and trading of exhaust emissions.

    Regulations regarding the availability of an averaging, banking,and 
trading program along with applicable record- keeping requirementsare 
found in subpart C of this part. Participation in the averaging,banking, 
and trading program is optional.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.112  Oxides of nitrogen, carbon monoxide, hydrocarbon, and particulatematter exhaust emission standards.

    (a) Exhaust emission from nonroad engines to which this subpart 
isapplicable shall not exceed the applicable exhaust emission 
standardscontained in Table 1, as follows:

[[Page 59]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.001

    (b) Exhaust emissions of oxides of nitrogen, carbon 
monoxide,hydrocarbon, and nonmethane hydrocarbon are measured using 
theprocedures set forth in subpart E of this part.

[[Page 60]]

    (c) Exhaust emission of particulate matter is measured usingthe 
California Regulations for New 1996 and Later Heavy-Duty Off-RoadDiesel 
Cycle Engines. This procedure is incorporated by reference. SeeSec. 
89.6.
    (d) In lieu of the NOX standards, NMHC +NOX 
standards, and PM standards specified in paragraph (a)of this section, 
manufacturers may elect to include engine families inthe averaging, 
banking, and trading program, the provisions of whichare specified in 
subpart C of this part. The manufacturer must set afamily emission limit 
(FEL) not to exceed the levels contained inTable 2. The FEL established 
by the manufacturer serves as thestandard for that engine family. Table 
2 follows:

[[Page 61]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.002

    (e) Naturally aspirated nonroad engines to which this subpart 
isapplicable shall not discharge crankcase emissions into the 
ambientatmosphere, unless such crankcase emissions are permanently 
routedinto the exhaust and included in all exhaust emission 
measurements.This provision applies to all

[[Page 62]]

Tier 2 engines and later models.This provision does not apply to engines 
using turbochargers, pumps,blowers, or superchargers for air induction.
    (f) The following paragraphs define the requirements for low-
emitting Blue Sky Series engines:
    (1) Voluntary standards. Engines may be designated``Blue Sky 
Series'' engines by meeting the voluntarystandards listed in Table 3, 
which apply to all certification and in-use testing, as follows:

             Table 3--Voluntary Emission Standards(g/kW-hr)
------------------------------------------------------------------------
              Rated Brake  Power (kW)                 NMHC+NOX      PM
------------------------------------------------------------------------
kW<8..............................................          4.6     0.48
8<=kW<19..........................................          4.5     0.48
19<=kW<37.........................................          4.5     0.36
37<=kW<75.........................................          4.7     0.24
75<=kW<130........................................          4.0     0.18
130<=kW<=560......................................          4.0     0.12
kW560..................................          3.8     0.12
------------------------------------------------------------------------

    (2) Additional standards. Blue Sky Series engines aresubject to all 
provisions that would otherwise apply under this part,except as 
specified in paragraph (f)(3) of this section.
    (3) Test procedures. NOX, NMHC, and PM emissionsare 
measured using the procedures set forth in 40 CFR part 1065, inlieu of 
the procedures set forth in subpart E of this part. COemissions may be 
measured using the procedures set forth either in 40CFR part 1065 or in 
subpart E of this part. Manufacturers may use analternate procedure to 
demonstrate the desired level of emissioncontrol if approved in advance 
by the Administrator. Engines meetingthe requirements to qualify as Blue 
Sky Series engines must be capableof maintaining a comparable level of 
emission control when testedusing the procedures set forth in paragraph 
(c) of this section andsubpart E of this part. The numerical emission 
levels measured usingthe procedures from subpart E of this part may be 
up to 20 percenthigher than those measured using the procedures from 40 
CFR part 1065and still be considered comparable.
    (g) Manufacturers of engines at or above 37 kW and below 56 kWfrom 
model years 2008 through 2012 that are subject to the standardsof this 
section under 40 CFR 1039.102 must take the followingadditional steps:
    (1) State the applicable PM standard on the emission 
controlinformation label.
    (2) Add information to the emission-related installationinstructions 
to clarify the equipment manufacturer's obligations under40 CFR 
1039.104(f).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57000, Oct. 23, 1998; 69 FR 39212, June 29, 2004; 70 FR 40444,July 13, 
2005]



Sec. 89.113  Smoke emission standard.

    (a) Exhaust opacity from compression-ignition nonroad engines 
forwhich this subpart is applicable must not exceed:
    (1) 20 percent during the acceleration mode;
    (2) 15 percent during the lugging mode; and
    (3) 50 percent during the peaks in either the acceleration orlugging 
modes.
    (b) Opacity levels are to be measured and calculated as set forthin 
40 CFR part 86, subpart I. Notwithstanding the provisions of 40 CFRpart 
86, subpart I, two-cylinder nonroad engines may be tested usingan 
exhaust muffler that is representative of exhaust mufflers usedwith the 
engines in use.
    (c) The following engines are exempt from the requirements of 
thissection:
    (1) Single-cylinder engines;
    (2) Propulsion marine diesel engines; and
    (3) Constant-speed engines.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57003, Oct. 23, 1998]



Sec. 89.114  Special and alternate test procedures.

    (a) Special test procedures. The Administrator may, on thebasis of 
written application by a manufacturer, establish special testprocedures 
other than those set forth in this part, for any nonroadengine that the 
Administrator determines is not susceptible tosatisfactory testing under 
the specified test procedures set forth insubpart E of this part or 40 
CFR part 86, subpart I.
    (b) Alternate test procedures. (1) A manufacturer may electto use an 
alternate test procedure provided that it yields equivalentresults to 
the specified procedures, its use is approved in

[[Page 63]]

advance by the Administrator, and the basis for equivalent resultswith 
the specified test procedures is fully described in themanufacturer's 
application.
    (2) The Administrator may reject data generated under alternatetest 
procedures which do not correlate with data generated under thespecified 
procedures.
    (3) A manufacturer may elect to use the test procedures in 40 
CFRpart 1065 as an alternate test procedure without advance approval 
bythe Administrator. The manufacturer must identify in its 
applicationfor certification that the engines were tested using the 
procedures in40 CFR part 1065. For any EPA testing with Tier 2 or Tier 3 
engines,EPA will use the manufacturer's selected procedures for 
mappingengines, generating duty cycles, and applying cycle-
validationcriteria. For any other parameters, EPA may conduct testing 
usingeither of the specified procedures.
    (4) Where we specify mandatory compliance with the procedures of40 
CFR part 1065, such as in Sec. 89.419, manufacturers mayelect to use 
the procedures specified in 40 CFR part 86, subpart N, asan alternate 
test procedure without advance approval by theAdministrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57003, Oct. 23, 1998; 69 FR 39212, June 29, 2004; 70 FR 40445,July 13, 
2005]



Sec. 89.115  Application for certificate.

    (a) For each engine family that complies with all 
applicablestandards and requirements, the engine manufacturer must 
submit to theAdministrator a completed application for a certificate of 
conformity.
    (b) The application must be approved and signed by the 
authorizedrepresentative of the manufacturer.
    (c) The application will be updated and corrected by amendment 
asprovided for in Sec. 89.123 to accurately reflect themanufacturer's 
production.
    (d) Required content. Each application must include thefollowing 
information:
    (1) A description of the basic engine design including, but 
notlimited to, the engine family specifications, the provisions of 
whichare contained in Sec. 89.116;
    (2) An explanation of how the emission control system 
operates,including a detailed description of all emission control 
systemcomponents, each auxiliary emission control device (AECD), and 
allfuel system components to be installed on any production or 
testengine(s);
    (3) Proposed test fleet selection and the rationale for the 
testfleet selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The period of operation necessary to accumulate service hourson 
test engines and stabilize emission levels;
    (6) A description of all adjustable operating parameters(including, 
but not limited to, injection timing and fuel rate),including the 
following:
    (i) The nominal or recommended setting and the associatedproduction 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used toestablish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops usedto 
establish the physically adjustable range of each parameter, or anyother 
means used to inhibit adjustment, are effective in preventingadjustment 
of parameters to settings outside the manufacturer'sintended physically 
adjustable ranges on in-use engines;
    (7) For families participating in the averaging, banking, andtrading 
program, the information specified in subpart C of this part;
    (8) A description of the test equipment and fuel proposed to beused;
    (9) All test data obtained by the manufacturer on each testengine;
    (10) An unconditional statement certifying that all engines in 
theengine family comply with all requirements of this part and the 
CleanAir Act.
    (11) A statement indicating whether the engine family containsonly 
nonroad engines, only stationary engines, or both.

[[Page 64]]

    (e) At the Administrator's request, the manufacturer mustsupply such 
additional information as may be required to evaluate theapplication 
including, but not limited to, projected nonroad engineproduction.
    (f)(1) The Administrator may modify the information 
submissionrequirements of paragraph (d) of this section, provided that 
all ofthe information specified therein is maintained by the 
enginemanufacturer as required by Sec. 89.124, and amended,updated, or 
corrected as necessary.
    (2) For the purposes of this paragraph, Sec. 89.124(a)(1) includes 
all information specified in paragraph (d) of thissection whether or not 
such information is actually submitted to theAdministrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's recordsat 
any time. At the Administrator's discretion, this review may takeplace 
either at the manufacturer's facility or at another facilitydesignated 
by the Administrator.
    (g) The manufacturer must name an agent for service located in 
theUnited States. Service on this agent constitutes service on 
themanufacturer or any of its officers or employees for any action by 
EPAor otherwise by the United States related to the requirements of 
thispart.

[59 FR 31335, June 17, 1994, as amended at 61 FR 20741, May 8,1996. 
Redesignated at 63 FR 56995, Oct. 23, 1998, as amended at 71 FR39184, 
July 11, 2006; 72 FR 53129, Sept. 18, 2007]



Sec. 89.116  Engine families.

    (a) A manufacturer's product line is divided into engine 
familiesthat are comprised of engines expected to have similar 
emissioncharacteristics throughout their useful life periods.
    (b) The following characteristics distinguish engine families:
    (1) Fuel;
    (2) Cooling medium;
    (3) Method of air aspiration;
    (4) Method of exhaust aftertreatment (for example, 
catalyticconverter or particulate trap);
    (5) Combustion chamber design;
    (6) Bore;
    (7) Stroke;
    (8) Number of cylinders, (engines with aftertreatment devicesonly); 
and
    (9) Cylinder arrangement (engines with aftertreatment devicesonly).
    (c) Upon a showing by the manufacturer that the useful life 
periodemission characteristics are expected to be similar, engines 
differingin one or more of the characteristics in paragraph (b) of this 
sectionmay be grouped in the same engine family.
    (d) Upon a showing by the manufacturer that the expected usefullife 
period emission characteristics will be different, enginesidentical in 
all the characteristics of paragraph (b) of this sectionmay be divided 
into separate engine families.
    (e)(1) This paragraph (e) applies only to the placement of Tier 
1engines with power ratings under 37 kW into engine families. 
Theprovisions of paragraphs (a) through (d) of this section also apply 
tothese engines. The power categories referred to in this paragraph 
(e)are those for which separate standards or implementation dates 
aredescribed in Sec. 89.112.
    (2) A manufacturer may place engines with power ratings in onepower 
category into an engine family comprised of engines with powerratings in 
another power category, and consider all engines in theengine family as 
being in the latter power category for the purpose ofdetermining 
compliance with the standards and other requirements ofthis part, 
subject to approval in advance by the Administrator and thefollowing 
restrictions:
    (i) The engines that have power ratings outside the enginefamily's 
power category must constitute less than half of the enginefamily's 
sales in each model year for which the engine family groupingis made; 
and
    (ii) The engines that have power ratings outside the enginefamily's 
power category must have power ratings that are within tenpercent of 
either of the two power levels that define the enginefamily's power 
category.
    (3) The restrictions described in paragraphs (e)(2)(i) and 
(e)(2)(ii) of this section do not apply if the emissions standards and 
otherrequirements of this part are at least as stringent for the 
enginefamily's power category as those of the other power categories

[[Page 65]]

containing engines in the engine family.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57003, Oct. 23, 1998]



Sec. 89.117  Test fleet selection.

    (a) The manufacturer must select for testing, from each 
enginefamily, the engine with the most fuel injected per stroke of 
aninjector, primarily at the speed of maximum torque and secondarily 
atrated speed.
    (b) Each engine in the test fleet must be constructed to 
berepresentative of production engines.
    (c) After review of the manufacturer's test fleet, theAdministrator 
may select from the available fleet one additional testengine from each 
engine family.
    (d) For establishing deterioration factors, the manufacturer 
shallselect the engines, subsystems, or components to be used to 
determineexhaust emission deterioration factors for each engine-family 
controlsystem combination. Engines, subsystems, or components shall 
beselected so that their emission deterioration characteristics 
areexpected to represent those of in-use engines, based on 
goodengineering judgment.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57003, Oct. 23, 1998]



Sec. 89.118  Deterioration factors and service accumulation.

    This section applies to service accumulation used to 
determinedeterioration factors and service accumulation used to 
condition testengines. Paragraphs (a) and (b) of this section apply only 
for serviceaccumulation used to condition test engines. Paragraph (e) of 
thissection applies only for service accumulation used to 
determinedeterioration factors. Paragraphs (c) and (d) of this section 
applyfor all service accumulation required by this part.
    (a)(1) Each test engine in the test fleet must be operated withall 
emission control systems operating properly for a periodsufficient to 
stabilize emissions.
    (2) A manufacturer may elect to consider as stabilized 
emissionlevels from engines with no more than 125 hours of service.
    (b) No maintenance, other than recommended lubrication and 
filterchanges, may be performed during service accumulation without 
theAdministrator's approval.
    (c) Service accumulation should be performed in a manner usinggood 
engineering judgment to ensure that emissions are representativeof in-
use engines.
    (d) The manufacturer must maintain, and provide to theAdministrator 
if requested, records stating the rationale forselecting the service 
accumulation period and records describing themethod used to accumulate 
service hours on the test engine(s).
    (e) This paragraph (e) describes service accumulation andalternative 
requirements for the purpose of developing deteriorationfactor.
    (1) Service accumulation on engines, subsystems, or 
componentsselected by the manufacturer under Sec. 89.117(d). 
Themanufacturer shall describe the form and extent of this 
serviceaccumulation in the application for certification.
    (2) Determination of exhaust emission deterioration factors.The 
manufacturer shall determine the deterioration factors inaccordance with 
the applicable provisions of this part based onservice accumulation and 
related testing, according to themanufacturer's procedures, except as 
provided in paragraph (e)(3) ofthis section.
    (3) Alternatives to service accumulation and testing for 
thedetermination of a deterioration factor. A written explanation ofthe 
appropriateness of using an alternative must be included in 
theapplication for certification.
    (i) Carryover and carryacross of durability emission data.In lieu of 
testing an emission data or durability data engine selectedunder Sec. 
89.117(d), a manufacturer may, with Administratorapproval, use exhaust 
emission deterioration data on a similar enginefor which certification 
to the same standard has previously beenobtained or for which all 
applicable data required underSec. 89.124 has previously been 
submitted. This data must besubmitted in the application for 
certification.
    (ii) Use of on-highway deterioration data. In the case wherea 
manufacturer produces a certified on-highway engine that is similarto 
the nonroad engine

[[Page 66]]

to be certified, deterioration data from theon-highway engine may be 
applied to the nonroad engine. Thisapplication of deterioration data 
from an on-highway engine to anonroad engine is subject to Administrator 
approval, and thedetermination of whether the engines are similar must 
be based on goodengineering judgment.
    (iii) Engineering analysis for established technologies. (A)In the 
case where an engine family uses established technology, ananalysis 
based on good engineering practices may be used in lieu oftesting to 
determine a deterioration factor for that engine family,subject to 
Administrator approval.
    (B) Engines for which the certification levels are not at or 
belowthe Tier 3 NMHC+NOX standards described inSec. 89.112 
are considered established technology, except asprovided in paragraph 
(e)(3)(iii)(D) of this section.
    (C) Manufacturers may petition the Administrator to consider 
anengine with a certification level below the Tier 3 
+NOXstandards as established technology. This petition must 
be based onproof that the technology used is not significantly different 
thanthat used on engines that have certification levels that are not 
belowthe Tier 3 NMHC+NOX levels.
    (D) Engines using exhaust gas recirculation or aftertreatment 
areexcluded from the provision set forth in paragraphs 
(e)(3)(iii)(A)through (e)(3)(iii)(C) of this section.
    (E) The manufacturer shall provide a written statement to 
theAdministrator that all data, analyses, test procedures, 
evaluations,and other documents, on which the deterioration factor is 
based, areavailable to the Administrator upon request.
    (iv) Interim provision for engines rated under 37 kW. Formodel year 
1999 and 2000 engines rated under 37 kW, manufacturers maydetermine 
deterioration factors based on good engineering judgementand reasonably 
available information. The manufacturer must maintainand provide to the 
Administrator, if requested, all information usedto determine 
deterioration factors for these engines.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57003, Oct. 23, 1998]



Sec. 89.119  Emission tests.

    (a) Manufacturer testing. (1) Upon completion of 
serviceaccumulation, the manufacturer must test each test engine using 
thespecified test procedures, except as provided inSec. 89.114. The 
procedures to be used are set forth in:
    (i) Subpart E of this part;
    (ii) The California Regulations for New 1996 and Later Heavy-
DutyOff-Road Diesel Cycle Engines. This procedure has been incorporated 
byreference. See Sec. 89.6; and
    (iii) Part 86, subpart I of this chapter.
    (2) Each test engine must be configured to be representative 
ofactual in-use operation. The Administrator may specify the 
adjustmentof any adjustable parameter. All test results must be reported 
to theAdministrator.
    (b) Confirmatory testing. The Administrator may conductconfirmatory 
testing or other testing on any test engine. Themanufacturer must 
deliver test engines as directed by theAdministrator. When the 
Administrator conducts confirmatory testing orother testing, those test 
results are used to determine compliancewith emission standards.
    (c) Use of carryover test data. In lieu of testing tocertify an 
engine family for a given model year, the manufacturer maysubmit, with 
the Administrator's approval, emission test data used tocertify that 
engine family in previous years. This``carryover'' data is only 
allowable if the submitted testdata show that the test engine would 
comply with the emissionstandard(s) for the model year for which 
certification is beingsought.
    (d) The provisions of this paragraph (d) apply only to Tier 1nonroad 
engines without exhaust aftertreatment rated at or above 37kW.
    (1) Particulate emission measurements from Tier 1 nonroad 
engineswithout exhaust aftertreatment rated at or above 37 kW may be 
adjustedto a sulfur content of 0.05 weight percent.
    (2) Adjustments to the particulate measurement shall be made 
usingthe following equation:

PMadj=PM-[BSFC x 0.0917 x(FSF-0.0005)]

Where:


[[Page 67]]


PMadj=adjusted measured PM level [g/Kw-hr].
PM=measured weighted PM level [g/Kw-hr].
BSFC=measured brake specific fuel consumption [G/Kw-hr].
FSF=fuel sulfur weight fraction.

    (3) Where a manufacturer certifies using test fuel with a 
sulfurcontent less than or equal to 0.050 weight percent, EPA shall not 
useemission data collected using test fuel with a sulfur content 
greaterthan 0.050 weight percent to determine compliance with the Tier 1 
PMstandards.
    (4) Where a manufacturer certifies using test fuel with a 
sulfurcontent greater than 0.050 weight percent, EPA shall not use 
emissiondata collected using test fuel with a sulfur content greater 
than0.050 weight percent to determine compliance with the Tier 1 
PMstandards, unless EPA adjusts the PM measurement using the 
equationspecified in paragraph (d)(2) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57004, Oct. 23, 1998]



Sec. 89.120  Compliance with emission standards.

    (a) If all test engines representing an engine family haveemissions 
less than or equal to each emission standard, that familycomplies with 
the emission standards.
    (b) If any test engine representing an engine family has 
emissionsgreater than each emission standard, that family will be deemed 
not incompliance with the emission standard(s).
    (c) For each nonroad engine family, except Tier 1 engine 
familieswith rated power at or above 37 kW that do not employ 
aftertreatment,a deterioration factor must be determined and applied.
    (1) The applicable exhaust emission standards (or family 
emissionlimits, as appropriate) for nonroad compression-ignition engines 
applyto the emissions of engines for their useful life.
    (2) [Reserved]
    (3)(i) This paragraph (c)(3) describes the procedure fordetermining 
compliance of an engine with emission standards (or familyemission 
limits, as appropriate), based on deterioration factorssupplied by the 
manufacturer. The NMHC + NOX deteriorationfactors shall be 
established based on the sum of the pollutants,except as provided in 
paragraph (c)(3)(iv) of this section. Whenestablishing deterioration 
factors for NMHC + NOX. anegative deterioration (emissions 
decrease from the official emissionstest result) for one pollutant may 
not offset deterioration of theother pollutant.
    (ii) Separate emission deterioration factors, determined by 
themanufacturer according to the requirements of Sec. 89.118,shall be 
provided in the certification application for each engine-system 
combination. Separate deterioration factors shall beestablished for each 
regulated pollutant, except that a combined NMHC+ NOX 
deterioration factor shall be established forcompression-ignition 
nonroad engines not utilizing aftertreatmenttechnology. For smoke 
testing, separate deterioration factors shallalso be established for the 
acceleration mode (designated as``A''), the lugging mode (designated 
as``B''), and peak opacity (designated as``C'').
    (iii) Compression-ignition nonroad engines not 
utilizingaftertreatment technology (e.g., particulate traps). For CO, 
NMHC +NOX. and particulate, the official exhaust 
emissionresults for each emission data engine at the selected test point 
shallbe adjusted by addition of the appropriate deterioration 
factor.However, if the deterioration factor supplied by the manufacturer 
isless than zero, it shall be zero for the purposes of this 
paragraph(c)(3)(iii).
    (iv) Compression-ignition nonroad engines utilizingaftertreatment 
technology (e.g., particulate traps). For CO, NMHC +NOX. and 
particulate, the official exhaust emissionresults for each emission data 
engine at the selected test point shallbe adjusted by multiplication by 
the appropriate deterioration factor.Separate NMHC and NOX 
deterioration factors shall beapplied to the results for these 
pollutants prior to combining theresults. If the deterioration factor 
supplied by the manufacturer isless than one, it shall be one for the 
purposes of this paragraph (c)(3)(iv).
    (v) For acceleration smoke (``A''), lugging smoke(``B''), and peak 
opacity (``C''), theofficial exhaust emission results for each emission 
data engine at

[[Page 68]]

the selected test point shall be adjusted by the addition of 
theappropriate deterioration factor. However if the 
deteriorationsupplied by the manufacturer is less than zero, it shall be 
zero forthe purposes of this paragraph (c)(3)(v).
    (vi) The emission values to compare with the standards (or 
familyemission limits, as appropriate) shall be the adjusted emission 
valuesof paragraphs (c)(3)(iii) through (v) of this section, rounded to 
thesame number of significant figures as contained in the 
applicablestandard in accordance with ASTM E29-93a, for each 
emissiondata engine. This procedure has been incorporated by reference 
atSec. 89.6.
    (4) Every test engine of an engine family must comply with 
allapplicable standards (or family emission limits, as appropriate), 
asdetermined in paragraph (c)(3)(vi) of this section, before any 
enginein that family will be certified.
    (d) For engine families included in the averaging, banking, 
andtrading program, the families' emission limits (FELs) are used in 
lieuof the applicable federal emission standard.
    (e) For the purposes of setting an NMHC + 
NOXcertification level or FEL, one of the following options 
shall be usedfor the determination of NMHC for an engine family. The 
manufacturermust declare which option is used in its application for 
certificationof that engine family.
    (1) The manufacturer may assume that up to two percent of 
themeasured THC is methane (NMHC = 0.98 x THC).
    (2) The manufacturer may measure NMHC emissions using a 
methodapproved by the Administrator prior to the start of testing. 
Thisoption allows the determination of NMHC emissions by 
subtractingmeasured methane emissions from measured THC emissions.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57004, Oct. 23, 1998]



Sec. 89.121  Certificate of conformity effective dates.

    The certificate of conformity is valid from the date of issuanceby 
EPA until 31 December of the model year or calendar year for whichit is 
issued.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.122  Certification.

    (a) If, after a review of the manufacturer's application, requestfor 
certificate, information obtained from any inspection, and suchother 
information as the Administrator may require, the 
Administratordetermines that the application is complete and that the 
engine familymeets the requirements of this part and the Clean Air Act, 
theAdministrator shall issue a certificate of conformity.
    (b) If, after a review of the information described in paragraph(a) 
of this section, the Administrator determines that therequirements of 
this part and the Clean Air Act have not been met, theAdministrator will 
deny certification. The Administrator must give awritten explanation 
when certification is denied. The manufacturer mayrequest a hearing on a 
denial.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.123  Amending the application and certificate of conformity.

    (a) The manufacturer of nonroad compression-ignition engines 
mustnotify the Administrator when changes to information required to 
bedescribed in the application for certification are to be made to 
aproduct line covered by a certificate of conformity. This 
notificationmust include a request to amend the application or the 
existingcertificate of conformity. Except as provided in paragraph (e) 
of thissection, the manufacturer shall not make said changes or produce 
saidengines prior to receiving approval from EPA.
    (b) A manufacturer's request to amend the application or theexisting 
certificate of conformity shall include the followinginformation:
    (1) A full description of the change to be made in production orof 
the engine to be added;
    (2) Engineering evaluations or data showing that engines asmodified 
or added will comply with all applicable emission standards;and

[[Page 69]]

    (3) A determination whether the manufacturer's original testfleet 
selection is still appropriate, and if the original test fleetselection 
is determined not to be appropriate, proposed test fleetselection(s) 
representing the engines changed or added which wouldhave been required 
if the engines had been included in the originalapplication for 
certification.
    (c) The Administrator may require the manufacturer to performtests 
on the engine representing the engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the descriptionof the 
proposed amendment and data derived from such testing as 
theAdministrator may require or conduct, the Administrator will 
determinewhether the proposed change or addition would still be covered 
by thecertificate of conformity then in effect.
    (2) If the Administrator determines that the change or newengine(s) 
meets the requirements of this subpart and the Act, theappropriate 
certificate of conformity is amended.
    (3) If the Administrator determines that the changed or newengine(s) 
does not meet the requirements of this subpart and the Act,the 
certificate of conformity will not be amended. The Administratorshall 
provide a written explanation to the manufacturer of thedecision not to 
amend the certificate. The manufacturer may request ahearing on a 
denial.
    (e) A manufacturer may make changes in or additions to 
productionengines concurrently with notifying the Administrator as 
required byparagraph (a) of this section, if the manufacturer complies 
with thefollowing requirements:
    (1) In addition to the information required in paragraph (b) ofthis 
section, the manufacturer must supply supporting documentation,test 
data, and engineering evaluations as appropriate to demonstratethat all 
affected engines will still meet applicable emissionstandards.
    (2) If, after a review, the Administrator determines 
additionaltesting is required, the manufacturer must provide required 
test datawithin 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines donot 
meet applicable requirements, the Administrator will notify 
themanufacturer to cease production of the affected engines and to 
recalland correct at no expense to the owner all affected engines 
previouslyproduced.
    (4) Election to produce engines under this paragraph will bedeemed 
to be a consent to recall all engines which the Administratordetermines 
do not meet applicable standards and to cause suchnonconformity to be 
remedied at no expense to the owner.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.124  Record retention, maintenance, and submission.

    (a) The manufacturer of any nonroad compression-ignition enginemust 
maintain the following adequately organized records:
    (1) Copies of all applications filed with the Administrator.
    (2) A detailed history of each test engine used for 
certificationincluding the following:
    (i) A description of the test engine's construction, including 
ageneral description of the origin and buildup of the engine, stepstaken 
to ensure that it is representative of production engines,description of 
components specially built for the test engine, and theorigin and 
description of all emission-related components;
    (ii) A description of the method used for service 
accumulation,including date(s) and the number of hours accumulated;
    (iii) A description of all maintenance, including 
modifications,parts changes, and other servicing performed, and the 
date(s) andreason(s) for such maintenance;
    (iv) A description of all emission tests performed (except 
testsperformed by the EPA directly) including routine and standard 
testdocumentation, as specified in subpart E of this part, date(s) and 
thepurpose of each test;
    (v) A description of all tests performed to diagnose engine 
oremission control performance, giving the date and time of each and 
thereason(s) for the test; and

[[Page 70]]

    (vi) A description of any significant event(s) affecting theengine 
during the period covered by the history of the test engine butnot 
described by an entry under one of the previous paragraphs of 
thissection.
    (3) Information required to be kept by the manufacturer inSec. 
89.118(e)(3) for alternatives to service accumulationand testing for the 
determination of a deterioration factor.
    (b) Routine emission test data, such as those reporting test 
celltemperature and relative humidity at start and finish of test and 
rawemission results from each mode or test phase, must be retained for 
aperiod of one year after issuance of all certificates of conformity 
towhich they relate. All other information specified in paragraph (a) 
ofthis section must be retained for a period of eight years 
afterissuance of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, providedthat 
at the Administrator's request, organized, written records inEnglish are 
promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's 
request,copies of any engine maintenance instructions or explanations 
issuedby the manufacturer.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57005, Oct. 23, 1998]



Sec. 89.125  Production engines, annual report.

    (a) Upon the Administrator's request, the manufacturer must supplya 
reasonable number of production engines for testing and evaluation.These 
engines must be representative of typical production and must besupplied 
for testing at such time and place and for such reasonableperiods as the 
Administrator may require.
    (b) The manufacturer must annually, within 30 days after the endof 
the model year, notify the Administrator of the number of 
enginesproduced by engine family, by gross power, by displacement, by 
fuelsystem, and, for engines produced under the provision ofSec. 
89.102(g), by engine model and purchaser (or shippingdestination for 
engines used by the engine manufacturer), or by othercategories as the 
Administrator may require.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57005, Oct. 23, 1998]



Sec. 89.126  Denial, revocation of certificate of conformity.

    (a) If, after review of the manufacturer's application, requestfor 
certification, information obtained from any inspection, and anyother 
information the Administrator may require, the Administratordetermines 
that one or more test engines do not meet applicablestandards (or family 
emission limits, as appropriate), then theAdministrator will notify the 
manufacturer in writing, setting forththe basis for this determination.
    (b) Notwithstanding the fact that engines described in 
theapplication may comply with all other requirements of this 
subpart,the Administrator may deny the issuance of, suspend, or revoke 
apreviously issued certificate of conformity if the Administrator 
findsany one of the following infractions to be substantial:
    (1) The manufacturer submits false or incomplete information;
    (2) The manufacturer denies an EPA enforcement officer or 
EPAauthorized representative the opportunity to conduct 
authorizedinspections;
    (3) The manufacturer fails to supply requested information oramend 
its application to include all engines being produced;
    (4) The manufacturer renders inaccurate any test data which 
itsubmits or otherwise circumvents the intent of the Act or this part;
    (5) The manufacturer denies an EPA enforcement officer or 
EPAauthorized representative reasonable assistance (as defined inSec. 
89.129(e)).
    (c) If a manufacturer knowingly commits an infraction specified 
inparagraph (b)(1) or (b)(4) of this section, knowingly commits anyother 
fraudulent act which results in the issuance of a certificate 
ofconformity, or fails to comply with the conditions specified inSec. 
89.203(d), Sec. 89.206(c),Sec. 89.209(c) or Sec. 89.210(g), 
theAdministrator may deem such certificate void ab initio.
    (d) When the Administrator denies, suspends, revokes, or voids 
abinitio a

[[Page 71]]

certificate of conformity the manufacturer will beprovided a written 
determination. The manufacturer may request ahearing under Sec. 89.127 
on the Administrator's decision.
    (e) Any suspension or revocation of a certificate of conformityshall 
extend no further than to forbid the introduction into commerceof 
engines previously covered by the certification which are still inthe 
hands of the manufacturer, except in cases of such fraud or 
othermisconduct that makes the certification invalid ab initio.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57005, Oct. 23, 1998]



Sec. 89.127  Request for hearing.

    (a) A manufacturer may request a hearing on the 
Administrator'sdenial, suspension, voiding ab initio or revocation of a 
certificateof conformity.
    (b) The manufacturer's request must be filed within 30 days of 
theAdministrator's decision, be in writing, and set forth 
themanufacturer's objections to the Administrator's decision and data 
tosupport the objections.
    (c) If, after review of the request and supporting data, 
theAdministrator finds that the request raises a substantial and 
factualissue, the Administrator will grant the manufacturer's request 
for ahearing.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.128  Hearing procedures.

    (a)(1) After granting a request for a hearing the Administratorshall 
designate a Presiding Officer for the hearing.
    (2) The hearing will be held as soon as practicable at a time 
andplace determined by the Administrator or by the Presiding Officer.
    (3) The Administrator may, at his or her discretion, direct thatall 
argument and presentation of evidence be concluded within aspecified 
period established by the Administrator. Said period may beno less than 
30 days from the date that the first written offer of ahearing is made 
to the manufacturer. To expedite proceedings, theAdministrator may 
direct that the decision of the Presiding Officer(who may, but need not, 
be the Administrator) shall be the final EPAdecision.
    (b)(1) Upon appointment pursuant to paragraph (a) of this 
section,the Presiding Officer will establish a hearing file. The file 
shallconsist of the following:
    (i) The determination issued by the Administrator underSec. 
89.126(d);
    (ii) The request for a hearing and the supporting data 
submittedtherewith;
    (iii) All documents relating to the request for certification andall 
documents submitted therewith; and
    (iv) Correspondence and other data material to the hearing.
    (2) The hearing file will be available for inspection by 
theapplicant at the office of the Presiding Officer.
    (c) An applicant may appear in person or may be represented 
bycounsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party or athis 
or her discretion, may arrange for a prehearing conference at atime and 
place he/she specifies. Such prehearing conference willconsider the 
following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction 
ofdocuments;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of any or all of theissues 
in dispute; and
    (v) Such other matters as may aid in the disposition of thehearing, 
including such additional tests as may be agreed upon by theparties.
    (2) The results of the conference shall be reduced to writing bythe 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in 
aninformal but orderly and expeditious manner. The parties may offeroral 
or written evidence, subject to the exclusion by the PresidingOfficer of 
irrelevant, immaterial, and repetitious evidence.
    (2) Witnesses will not be required to testify under oath. 
However,the Presiding Officer shall call to the attention of witnesses 
thattheir statements may be subject to the provisions of 18 U.S.C. 
1001which imposes penalties for knowingly making false statements or

[[Page 72]]

representations or using false documents in any matter within 
thejurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the 
PresidingOfficer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts 
ofproceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar 
dataoffered in evidence at the hearings shall, upon a showing 
satisfactoryto the Presiding Officer of their authenticity, relevancy, 
andmateriality, be received in evidence and shall constitute a part 
ofthe record.
    (6) Oral argument may be permitted at the discretion of thePresiding 
Officer and shall be reported as part of the record unlessotherwise 
ordered by the Presiding Officer.
    (f)(1) The Presiding Officer shall make an initial decision 
whichshall include written findings and conclusions and the reasons 
orbasis regarding all the material issues of fact, law, or 
discretionpresented on the record. The findings, conclusions, and 
writtendecision shall be provided to the parties and made a part of 
therecord. The initial decision shall become the decision of 
theAdministrator without further proceedings, unless there is an 
appealto the Administrator or motion for review by the Administrator 
within20 days of the date the initial decision was filed. If 
theAdministrator has determined under paragraph (a) of this section 
thatthe decision of the Presiding Officer is final, there is no right 
ofappeal to the Administrator.
    (2) On appeal from or review of the initial decision, 
theAdministrator shall have all the powers which he or she would have 
inmaking the initial decision, including the discretion to require 
orallow briefs, oral argument, the taking of additional evidence, or 
theremanding to the Presiding Officer for additional proceedings. 
Thedecision by the Administrator may adopt the original decision or 
shallinclude written findings and conclusions and the reasons or 
basistherefor on all the material issues of fact, law, or 
discretionpresented on the appeal or considered in the review.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.129  Right of entry.

    (a) Any manufacturer who has applied for certification of a 
newengine or engine family subject to certification testing under 
thissubpart shall admit or cause to be admitted to any of the 
followingfacilities during operating hours any EPA enforcement officer 
or EPAauthorized representative on presentation of credentials.
    (1) Any facility where any such certification testing or 
anyprocedures or activities connected with such certification testing 
areor were performed;
    (2) Any facility where any new engine which is being, was, or isto 
be tested is present;
    (3) Any facility where any construction process or assemblyprocess 
used in the modification or buildup of such an engine into 
acertification engine is taking place or has taken place; and
    (4) Any facility where any record or other document relating toany 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a)(1)of 
this section, any EPA enforcement officer or EPA 
authorizedrepresentative shall be allowed:
    (1) To inspect and monitor any part or aspect of such 
procedures,activities, and testing facilities, including, but not 
limited to,monitoring engine preconditioning, emission tests and 
serviceaccumulation, maintenance, and engine storage procedures, and 
toverify correlation or calibration of test equipment;
    (2) To inspect and make copies of any such records, designs, orother 
documents; and
    (3) To inspect and photograph any part or aspect of any 
suchcertification engine and any components to be used in the 
constructionthereof.
    (c) To allow the Administrator to determine whether 
productionengines conform in all material respects to the design 
specificationsapplicable to those engines, as described in the 
application forcertification for which a certificate of conformity has 
been issued,any manufacturer shall admit any EPA

[[Page 73]]

enforcement officer or EPAauthorized representative on presentation of 
credentials to:
    (1) Any facility where any document, design, or procedure relatingto 
the translation of the design and construction of engines andemission-
related components described in the application forcertification or used 
for certification testing into productionengines is located or carried 
on; and
    (2) Any facility where any engines to be introduced into commerceare 
manufactured or assembled.
    (d) On admission to any such facility referred to in paragraph (c)of 
this section, any EPA enforcement officer or EPA 
authorizedrepresentative shall be allowed:
    (1) To inspect and monitor any aspects of such manufacture 
orassembly and other procedures;
    (2) To inspect and make copies of any such records, documents 
ordesigns; and
    (3) To inspect and photograph any part or aspect of any such 
newengines and any component used in the assembly thereof that 
arereasonably related to the purpose of his or her entry.
    (e) Any EPA enforcement officer or EPA authorized 
representativeshall be furnished by those in charge of a facility being 
inspectedwith such reasonable assistance as he or she may request to 
help theenforcement officer or authorized representative discharge 
anyfunction listed in this paragraph. Each applicant for or recipient 
ofcertification is required to cause those in charge of a 
facilityoperated for its benefit to furnish such reasonable assistance 
withoutcharge to EPA whether or not the applicant controls the facility.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
request of personnel of the facility being inspectedduring their working 
hours to inform the EPA enforcement officer orEPA authorized 
representative of how the facility operates and toanswer the officer's 
questions; and the performance on request ofemission tests on any engine 
which is being, has been, or will be usedfor certification testing. Such 
tests shall be nondestructive, but mayrequire appropriate service 
accumulation.
    (2) A manufacturer may be compelled to cause any employee at 
afacility being inspected to appear before an EPA enforcement officeror 
EPA authorized representative. The request for the employee'sappearance 
shall be in writing, signed by the Assistant Administratorfor Air and 
Radiation, and served on the manufacturer. Any employeewho has been 
instructed by the manufacturer to appear will be entitledto be 
accompanied, represented, and advised by counsel.
    (f) The duty to admit or cause to be admitted any EPA 
enforcementofficer or EPA authorized representative applies whether or 
not theapplicant owns or controls the facility in question and applies 
bothto domestic and to foreign manufacturers and facilities. EPA will 
notattempt to make any inspections which it has been informed that 
locallaw forbids. However, if local law makes it impossible to do what 
isnecessary to ensure the accuracy of data generated at a facility, 
noinformed judgment that an engine is certifiable or is covered by 
acertificate can properly be based on those data. It is 
theresponsibility of the manufacturer to locate its testing 
andmanufacturing facilities in jurisdictions where this situation 
willnot arise.
    (g) Any entry without 24 hours prior written or oral notificationto 
the affected manufacturer shall be authorized in writing by theAssistant 
Administrator for Enforcement.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.130  Rebuild practices.

    The provisions of 40 CFR 1068.120 apply to rebuilding of 
enginessubject to the requirements of this part 89, except Tier 1 
enginesrated at or above 37 kW.

[70 FR 40445, July 13, 2005]

[[Page 74]]



          Subpart C_Averaging, Banking, and Trading Provisions



Sec. 89.201  Applicability.

    Nonroad compression-ignition engines subject to the provisions 
ofsubpart A of this part are eligible to participate in the 
averaging,banking, and trading program described in this subpart. To the 
extentspecified in 40 CFR part 60, subpart IIII, stationary 
enginescertified under this part and subject to the standards of 40 CFR 
part60, subpart IIII, may participate in the averaging, banking, 
andtrading program described in this subpart.

[71 FR 39184, July 11, 2006]



Sec. 89.202  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart:
    Averaging for nonroad engines means the exchange of emissioncredits 
among engine families within a given manufacturer's productline.
    Banking means the retention of nonroad engine emissioncredits by the 
manufacturer generating the emission credits for use infuture model year 
averaging or trading as permitted by theseregulations.
    Emission credits represent the amount of emission reductionor 
exceedance, by a nonroad engine family, below or above the 
emissionstandard, respectively. Emission reductions below the standard 
areconsidered as ``positive credits,'' while emissionexceedances above 
the standard are considered as ``negativecredits.'' In addition, 
``projected credits'' referto emission credits based on the projected 
applicable production/salesvolume of the engine family. ``Reserved 
credits'' areemission credits generated within a model year waiting to 
be reportedto EPA at the end of the model year. ``Actual credits''refer 
to emission credits based on actual applicable production/salesvolume as 
contained in the end-of-year reports submitted to EPA. Someor all of 
these credits may be revoked if EPA review of the end-of-year reports or 
any subsequent audit action(s) uncovers problems orerrors.
    Trading means the exchange of nonroad engine emissioncredits between 
manufacturers.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.203  General provisions.

    (a) The averaging, banking, and trading programs forNOX. 
NMHC+NOX. and PM emissions from eligiblenonroad engines are 
described in this subpart. Participation in theseprograms is voluntary.
    (b) Requirements for Tier 1 engines rated at or above 37 kW.(1) A 
nonroad engine family is eligible to participate in theaveraging, 
banking, and trading program for NOX emissionsand the banking 
and trading program for PM emissions if it is subjectto regulation under 
subpart B of this part with certain exceptionsspecified in paragraph 
(b)(2) of this section. No averaging, banking,and trading program is 
available for meeting the Tier 1 HC, CO, orsmoke emission standards 
specified in subpart B of this part. Noaveraging program is available 
for meeting the Tier 1 PM emissionstandards specified in subpart B of 
this part.
    (2) Nonroad engines may not participate in the averaging, 
banking,and trading programs if they are exported or are sold as Blue 
SkySeries engines as described in Sec. 89.112(f). Nonroadengines 
certified on a special test procedure underSec. 89.114(a), may not 
participate in the averaging,banking and trading programs unless the 
manufacturer has requestedthat the engines be included in the averaging, 
banking, and tradingprograms at the time the request for the special 
test procedure ismade and has been granted approval by the Administrator 
for inclusionin the averaging, banking, and trading programs.
    (3) A manufacturer may certify one or more nonroad engine familiesat 
NOX family emission limits (FELs) above or below theTier 1 
NOX emission standard, provided the summation ofthe 
manufacturer's projected balance of all NOX 
credittransactions in a given model year is greater than or equal to 
zero,as determined under Sec. 89.207(a). A manufacturer maycertify one 
or more nonroad engine families at PM FELs below the Tier2 PM emission

[[Page 75]]

standard that will be applicable to those enginefamilies.
    (i) FELs for NOX may not exceed the Tier 1 upper 
limitspecified in Sec. 89.112(d).
    (ii) An engine family certified to an FEL is subject to 
allprovisions specified in this part, except that the applicable 
FELreplaces the emission standard for the family participating in 
theaveraging, banking, and trading program.
    (iii) A manufacturer of an engine family with a NOXFEL 
exceeding the Tier 1 NOX emission standard must 
obtainNOX emission credits sufficient to address the 
associatedcredit shortfall via averaging, banking, or trading.
    (iv) An engine family with a NOX FEL below theapplicable 
Tier 1 standard may generate emission credits foraveraging, banking, 
trading, or a combination thereof. An enginefamily with a PM FEL below 
the Tier 2 standard that will be applicableto that engine family may 
generate emission credits for banking,trading, or a combination thereof. 
Emission credits may not be used tooffset an engine family's emissions 
that exceed its applicable FEL.Credits may not be used to remedy 
nonconformity determined by aSelective Enforcement Audit (SEA) or by 
recall (in-use) testing.However, in the case of an SEA failure, credits 
may be used to allowsubsequent production of engines for the family in 
question if themanufacturer elects to recertify to a higher FEL.
    (4) NOX credits generated in a given model year may 
beused to address credit shortfalls with other engines during that 
modelyear or in any subsequent model year except as noted under 
paragraph(b)(5)(ii) of this section. PM credits may be used to address 
creditshortfalls with Tier 2 and later engines greater than or equal to 
37kW and Tier 1 and later engines less than 37 kW and greater than 
orequal to 19 kW. Credits generated in one model year may not be usedfor 
prior model years.
    (5) The following provisions apply to the use of Tier 
1NOX credits for showing compliance with the Tier 2 or Tier3 
NMHC+NOX standards.
    (i) A manufacturer may use NOX credits from 
enginessubject to the Tier 1 NOX standard to 
addressNMHC+NOX credit shortfalls with engines in the 
sameaveraging set subject to Tier 1 NMHC+NOX or Tier 
2NMHC+NOX emission standards.
    (ii) A manufacturer may not use NOX credits fromengines 
subject to the Tier 1 standards to addressNMHC+NOX credit 
shortfalls with engines subject to theTier 3 NMHC+NOX 
emission standards.
    (c) Requirements for Tier 2 and later engines rated at or above37 kW 
and Tier 1 and later engines rated under 37 kW. (1) A nonroadengine 
family is eligible to participate in the averaging, banking,and trading 
programs for NMHC+NOX emissions and PMemissions if it is 
subject to regulation under subpart B of this partwith certain 
exceptions specified in paragraph (c)(2) of this section.No averaging, 
banking, and trading program is available for meetingthe CO or smoke 
emission standards specified in subpart B of thispart.
    (2) Nonroad engines may not participate in the averaging, 
banking,and trading programs if they are exported or are sold as Blue 
SkySeries engines as described in Sec. 89.112(f). Nonroadengines 
certified on a special test procedure underSec. 89.114(a), may not 
participate in the averaging,banking and trading programs unless the 
manufacturer has requestedthat the engines be included in the averaging, 
banking, and tradingprograms at the time the request for the special 
test procedure ismade and has been granted approval by the Administrator 
for inclusionin the averaging, banking, and trading programs.
    (3)(i) A manufacturer may certify one or more nonroad enginefamilies 
at FELs above or below the applicable NMHC+NOXemission 
standard and PM emission standard, provided the summation ofthe 
manufacturer's projected balance of all NMHC+NOXcredit 
transactions and the summation of the manufacturer's projectedbalance of 
all PM credit transactions in a given model year in a givenaveraging set 
is greater than or equal to zero, as determined underSec. 89.207(b).
    (A) FELs for NMHC+NOX and FELs for PM may not exceedthe 
upper limits specified in Sec. 89.112(d).

[[Page 76]]

    (B) An engine family certified to an FEL is subject to allprovisions 
specified in this part, except that the applicable FELreplaces the 
emission standard for the family participating in theaveraging, banking, 
and trading program.
    (C) A manufacturer of an engine family with an FEL exceeding 
theapplicable emission standard must obtain emission credits 
sufficientto address the associated credit shortfall via averaging, 
banking, ortrading, within the restrictions described in Sec. 
89.204(c)and Sec. 89.206(b)(4).
    (D) An engine family with an FEL below the applicable standard 
maygenerate emission credits for averaging, banking, trading, or 
acombination thereof. Emission credits may not be used to offset 
anengine family's emissions that exceed its applicable FEL. Credits 
maynot be used to remedy nonconformity determined by a 
SelectiveEnforcement Audit (SEA) or by recall (in-use) testing. However, 
in thecase of an SEA failure, credits may be used to allow 
subsequentproduction of engines for the family in question if the 
manufacturerelects to recertify to a higher FEL.
    (ii)(A) In lieu of generating credits under paragraph (c)(3)(i) 
ofthis section, a manufacturer may certify one or more nonroad 
enginefamilies rated under 37 kW at family emission limits (FELs) above 
orbelow the applicable NMHC+NOX emission standard and 
PMemission standard. The summation of the manufacturer's 
projectedbalance of all NMHC+NOX credit transactions and 
thesummation of the manufacturer's projected balance of all PM 
credittransactions in a given model year, as determined underSec. 
89.207(b), are each allowed to be less than zero.Separate calculations 
shall be required for the following twocategories of engines: engines 
rated under 19 kW and engines rated ator above 19 kW and under 37 kW.
    (B) For each calendar year a negative credit balance exists as 
ofDecember 31, a penalty equal to ten percent of the negative 
creditbalance as of December 31 of the calendar year shall be added to 
thenegative credit balance. The resulting negative credit balance 
shallbe carried into the next calendar year.
    (C) For engines rated under 19 kW, a manufacturer will be allowedto 
carry over a negative credit balance until December 31, 2003. Forengines 
rated at or above 19 kW and under 37 kW, a manufacturer willbe allowed 
to carry over a negative credit balance until December 31,2002. As of 
these dates, the summation of the manufacturer's projectedbalance of all 
NMHC+NOX credit transactions and thesummation of the 
manufacturer's projected balance of all PM credittransactions must each 
be greater than or equal to zero.
    (D) FELs for NMHC+NOX and FELs for PM may not exceedthe 
upper limits specified in Sec. 89.112(d).
    (E) An engine family certified to an FEL is subject to allprovisions 
specified in this part, except that the applicableNMHC+NOX 
FEL or PM FEL replaces the NMHC+NOXemission standard or PM 
emission standard for the family participatingin the averaging and 
banking program.
    (F) A manufacturer of an engine family with an FEL exceeding 
theapplicable emission standard must obtain emission credits 
sufficientto address the associated credit shortfall via averaging or 
banking.The exchange of emission credits generated under this program 
withother nonroad engine manufacturers in trading is not allowed.
    (G) An engine family with an FEL below the applicable standard 
maygenerate emission credits for averaging, banking, or a 
combinationthereof. Emission credits may not be used to offset an engine 
family'semissions that exceed its applicable FEL. Credits may not be 
used toremedy nonconformity determined by a Selective Enforcement Audit 
(SEA)or by recall (in-use) testing. However, in the case of an SEA 
failure,credits may be used to allow subsequent production of engines 
for thefamily in question if the manufacturer elects to recertify to a 
higherFEL.
    (4)(i) Except as noted in paragraphs (c)(4)(ii), (c)(4)(iii), 
and(c)(4)(iv) of this section, credits generated in a given model 
yearmay be used during that model year or used in any subsequent 
modelyear. Except as allowed under paragraph (c)(3)(ii) of this section,

[[Page 77]]

credits generated in one model year may not be used for priormodel 
years.
    (ii) Credits generated from engines rated under 19 kW prior to 
theimplementation date of the applicable Tier 2 standards, shall 
expireon December 31, 2007.
    (iii) Credits generated from engines rated under 19 kW under 
theprovisions of paragraph (c)(3)(ii) shall expire on December 31, 2003.
    (iv) Credits generated from engines rated at or above 19 kW andunder 
37 kW under the provisions of paragraph (c)(3)(ii) of thissection shall 
expire on December 31, 2002.
    (5) Except as provided in paragraph (b)(3) of this section, 
enginefamilies may not generate credits for one pollutant while also 
usingcredits for another pollutant in the same model year.
    (6) Model year 2008 and 2009 engines rated under 8 kW that 
areallowed to certify under this part because they meet the criteria 
in40 CFR 1039.101(c) may not generate emission credits.
    (d) Manufacturers must demonstrate compliance under the 
averaging,banking, and trading programs for a particular model year 
within 270days of the end of the model year. Except as allowed under 
paragraph(c)(3)(ii) of this section, manufacturers that have certified 
enginefamilies to FELs above the applicable emission standards and do 
nothave sufficient emission credits to offset the difference between 
theemission standards and the FEL for such engine families will be 
inviolation of the conditions of the certificate of conformity for 
suchengine families. The certificates of conformity may be voided 
abinitio under Sec. 89.126(c) for those engine families.

[63 FR 57006, Oct. 23, 1998, as amended at 69 FR 39213, June29, 2004]



Sec. 89.204  Averaging.

    (a) Requirements for Tier 1 engines rated at or above 37 kW.A 
manufacturer may use averaging to offset an emission exceedance of 
anonroad engine family caused by a NOX FEL above 
theapplicable emission standard. NOX credits used inaveraging 
may be obtained from credits generated by another enginefamily in the 
same model year, credits banked in a previous modelyear, or credits 
obtained through trading.
    (b) Requirements for Tier 2 and later engines rated at or above37 kW 
and Tier 1 and later engines rated under 37 kW. Amanufacturer may use 
averaging to offset an emission exceedance of anonroad engine family 
caused by an NMHC+;NOX FEL or a PMFEL above the applicable 
emission standard. Credits used in averagingmay be obtained from credits 
generated by another engine family in thesame model year, credits banked 
in previous model years that have notexpired, or credits obtained 
through trading. The use of credits shallbe within the restrictions 
described in paragraph (c) of this section,Sec. 89.206(b)(4) and Sec. 
89.203(b)(5)(ii).
    (c) Averaging sets for emission credits. The averaging andtrading of 
NOX emission credits, NMHC + NOXemission credits, 
and PM emissions credits will only be allowedbetween engine families in 
the same averaging set. The averaging setsfor the averaging and trading 
of NOX emission credits,NMHC + NOX emission 
credits, and PM emission credits fornonroad engines are defined as 
follows:
    (1) Eligible engines rated at or above 19 kW, other than 
marinediesel engines, constitute an averaging set.
    (2) Eligible engines rated under 19 kW, other than marine 
dieselengines, constitute an averaging set.
    (3) Marine diesel engines rated at or above 19 kW constitute 
anaveraging set. Emission credits generated from marine diesel 
enginesrated at or above 19 kW may be used to address credit shortfalls 
foreligible engines rated at or above 19 kW other than marine 
dieselengines.
    (4) Marine diesel engines rated under 19 kW constitute anaveraging 
set. Emission credits generated from marine diesel enginesrated under 19 
kW may be used to address credit shortfalls foreligible engines rated 
under 19 kW other than marine diesel engines.

[63 FR 57007, Oct. 23, 1998]



Sec. 89.205  Banking.

    (a) Requirements for Tier 1 engines rated at or above 37 kW.(1) A 
manufacturer of a nonroad engine family with a NOXFEL below 
the applicable standard

[[Page 78]]

for a given model year may bankcredits in that model year for use in 
averaging and trading in anysubsequent model year.
    (2) A manufacturer of a nonroad engine family may bankNOX 
credits up to one calendar year prior to the effectivedate of mandatory 
certification. Such engines must meet therequirements of subparts A, B, 
D, E, F, G, H, I, J, and K of thispart.
    (3)(i) A manufacturer of a nonroad engine family may bank PMcredits 
from Tier 1 engines under the provisions specified inSec. 89.207(b) for 
use in averaging and trading in the Tier2 or later timeframe. These 
credits are considered to be Tier 2credits.
    (ii) Such engine families are subject to all provisions specifiedin 
subparts A, B, D, E, F, G, H, I, J, and K of this part, except thatthe 
applicable PM FEL replaces the PM emission standard for the 
familyparticipating in the banking and trading program.
    (b) Requirements for Tier 2 and later engines rated at or above37 kW 
and Tier 1 and later engines rated under 37 kW. (1) Amanufacturer of a 
nonroad engine family with an NMHC + NOXFEL or a PM FEL below 
the applicable standard for a given model yearmay bank credits in that 
model year for use in averaging and tradingin any following model year.
    (2) For engine rated under 37 kW, a manufacturer of a nonroadengine 
family may bank credits prior to the effective date ofmandatory 
certification. Such engines must meet the requirements ofsubparts A, B, 
D, E, F, G, H, I, J, and K of this part.
    (c) A manufacturer may bank actual credits only after the end ofthe 
model year and after EPA has reviewed the manufacturer's end-of-year 
reports. During the model year and before submittal of the end-of-year 
report, credits originally designated in the certificationprocess for 
banking will be considered reserved and may beredesignated for trading 
or averaging in the end-of-year report andfinal report.
    (d) Credits declared for banking from the previous model year 
thathave not been reviewed by EPA may be used in averaging or 
tradingtransactions. However, such credits may be revoked at a later 
timefollowing EPA review of the end-of-year report or any subsequent 
auditactions.

[63 FR 57008, Oct. 23, 1998, as amended at 72 FR 53129, Sept.18, 2007]



Sec. 89.206  Trading.

    (a) Requirements for Tier 1 engines rated at or above 37 kW.(1) A 
nonroad engine manufacturer may exchange emission credits withother 
nonroad engine manufacturers within the same averaging set intrading.
    (2) Credits for trading can be obtained from credits banked in 
aprevious model year or credits generated during the model year of 
thetrading transaction.
    (3) Traded credits can be used for averaging, banking, or 
furthertrading transactions within the restrictions described inSec. 
89.204(c).
    (b) Requirements for Tier 2 and later engines rated at or above37 kW 
and Tier 1 and later engines rated under 37 kW. (1) A nonroadengine 
manufacturer may exchange emission credits with other nonroadengine 
manufacturers within the same averaging set in trading.
    (2) Credits for trading can be obtained from credits banked 
inprevious model years that have not expired or credits generated 
duringthe model year of the trading transaction.
    (3) Traded credits can be used for averaging, banking, or 
furthertrading transactions within the restrictions described inSec. 
89.204(c) and paragraph (b)(4) of this section.
    (4) Emission credits generated from engines rated at or above 19kW 
utilizing indirect fuel injection may not be traded to 
othermanufacturers.
    (c) In the event of a negative credit balance resulting from 
atransaction, both the buyer and the seller are liable, except in 
casesdeemed involving fraud. Certificates of all engine 
familiesparticipating in a negative trade may be voided ab initio 
underSec. 89.126(c).

[63 FR 57008, Oct. 23, 1998]



Sec. 89.207  Credit calculation.

    (a) Requirements for calculating NOX creditsfrom Tier 1 
engines rated at or above 37 kW. (1) For eachparticipating engine 
family, emission credits (positive or negative)are to be calculated

[[Page 79]]

according to one of the following equationsand rounded, in accordance 
with ASTM E29-93a, to the nearestone-hundredth of a megagram (Mg). This 
ASTM procedure has beenincorporated by reference (see Sec. 89.6). 
Consistent unitsare to be used throughout the equation.
    (i) For determining credit availability from all engine 
familiesgenerating credits: Emission credits = (Std-FEL) x(Volume) x 
(AvgPR) x (UL) x (Adjustment) x(10-6)
    (ii) For determining credit usage for all engine familiesrequiring 
credits to offset emissions in excess of the standard:

Emission credits = (Std-FEL) x (Volume) x(AvgPR) x (UL) x 
    (10-6)

Where:

Std = the applicable Tier 1 NOX nonroad engineemission 
standard, in grams per kilowatt-hour.
FEL = the NOX family emission limit for the enginefamily in 
grams per kilowatt-hour.
Volume = the number of nonroad engines eligible to participate inthe 
averaging, banking, and trading program within the given enginefamily 
during the model year. Engines sold to equipment or vehiclemanufacturers 
under the provisions of Sec. 89.102(g) shallnot be included in this 
number. Quarterly production projections areused for initial 
certification. Actual applicable production/salesvolume is used for end-
of-year compliance determination.
AvgPR = the average power rating of all of the configurationswithin an 
engine family, calculated on a sales-weighted basis, inkilowatts.
UL = the useful life for the engine family, in hours.
Adjustment = a one-time adjustment, as specified in paragraph (a)(2) of 
this section, to be applied to Tier 1 NOX creditsto be banked 
or traded for determining compliance with the Tier 1NOX 
standards or Tier 2 NOX+NMHC standardsspecified in subpart B 
of this part. Banked credits traded in asubsequent model year will not 
be subject to an additional adjustment.Banked credits used in a 
subsequent model year's averaging programwill not have the adjustment 
restored.

    (2) If an engine family is certified to a NOX FEL of8.0 
g/kW-hr or less, an Adjustment value of 1.0 shall be used in thecredit 
generation calculation described in paragraph (a)(1)(i) of thissection. 
If an engine family is certified to a NOX FELabove 8.0 g/kW-
hr, an Adjustment value of 0.65 shall be used in thecredit generation 
calculation described in paragraph (a)(1)(i) of thissection. If the 
credits are to be used by the credit-generatingmanufacturer for 
averaging purposes in the same model year in whichthey are generated, an 
Adjustment value of 1.0 shall be used for allengines regardless of the 
level of the NOX FEL. If thecredits are to be banked by the 
credit-generating manufacturer andused in a subsequent model year for 
another Tier 1 engine family, anAdjustment value of 1.0 shall be used 
for all engines regardless ofthe level of the NOX FEL.
    (b) Requirements for calculating NMHC + NOXCredits from 
Tier 2 and later engines rated at or above 37 kW andTier 1 and later 
engines rated under 37 kW and PM credits from allengines. (1) For each 
participating engine family, NOX+ NMHC emission credits and 
PM emission credits (positive or negative)are to be calculated according 
to one of the following equations androunded, in accordance with ASTM 
E29-93a, to the nearest one-hundredth of a megagram (Mg). This procedure 
has been incorporated byreference (see Sec. 89.6). Consistent units are 
to be usedthroughout the equation.
    (i) For determining credit availability from all engine 
familiesgenerating credits:

Emission credits = (Std-FEL) x (Volume) x (AvgPR)x (UL) x 
    (10-6)

    (ii) For determining credit usage for all engine familiesrequiring 
credits to offset emissions in excess of the standard:

Emission credits = (Std-FEL) x (Volume) x (AvgPR)x (UL) x 
    (10-6)

Where:

Std = the current and applicable nonroad engine emission standard,in 
grams per kilowatt-hour, except for PM calculations where it is 
theapplicable nonroad engine Tier 2 PM emission standard, and except 
forengines rated under 19 kW where it is the applicable nonroad 
engineTier 2 emission standard, in grams per kilowatt-hour. (Engines 
ratedunder 19 kW participating in the averaging and banking 
programprovisions of Sec. 89.203(c)(3)(ii) shall use the Tier 1standard 
for credit calculations.)
FEL = the family emission limit for the engine family in grams 
perkilowatt-hour.

[[Page 80]]

Volume = the number of nonroad engines eligible to participatein the 
averaging, banking, and trading program within the given enginefamily 
during the model year. Engines sold to equipment or vehiclemanufacturers 
under the provisions of Sec. 89.102(g) shallnot be included in this 
number. Quarterly production projections areused for initial 
certification. Actual applicable production/salesvolume is used for end-
of-year compliance determination.
AvgPR = the average power rating of all of the configurationswithin an 
engine family, calculated on a sales-weighted basis, inkilowatts.
UL = the useful life for the given engine family, in hours.

[63 FR 57008, Oct. 23, 1998]



Sec. 89.208  Labeling.

    For all nonroad engines included in the averaging, banking, 
andtrading programs, the family emission limits to which the engine 
iscertified must be included on the label required inSec. 89.110.

[63 FR 57009, Oct. 23, 1998]



Sec. 89.209  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Declare its intent to include specific engine families in 
theaveraging, banking, and trading programs.
    (2) Submit a statement that the engines for which certification 
isrequested will not, to the best of the manufacturer's belief, causethe 
manufacturer to have a negative credit balance when all creditsare 
calculated for all the manufacturer's engine familiesparticipating in 
the averaging, banking, and trading programs, exceptas allowed under 
Sec. 89.203(c)(3)(ii).
    (3) Declare the applicable FELs for each engine familyparticipating 
in averaging, banking, and trading.
    (i) The FELs must be to the same number of significant digits asthe 
emission standard for the applicable pollutant.
    (ii) In no case may the FEL exceed the upper limits prescribed 
inSec. 89.112(d).
    (4) Indicate the projected number of credits generated/needed 
forthis family; the projected applicable production/sales volume, 
byquarter; and the values required to calculate credits as given inSec. 
89.207.
    (5) Submit calculations in accordance with Sec. 89.207of projected 
emission credits (positive or negative) based onquarterly production 
projections for each participating family.
    (6)(i) If the engine family is projected to have negative 
emissioncredits, state specifically the source (manufacturer/engine 
family orreserved) of the credits necessary to offset the credit 
deficitaccording to quarterly projected production, or, if the engine 
familyis to be included in the provisions of Sec. 89.203(c)(3)(ii), 
state that the engine family will be subject to thoseprovisions.
    (ii) If the engine family is projected to generate credits, 
statespecifically (manufacturer/engine family or reserved) where 
thequarterly projected credits will be applied.
    (b) All certificates issued are conditional upon 
manufacturercompliance with the provisions of this subpart both during 
and afterthe model year of production.
    (c) Failure to comply with all provisions of this subpart will 
beconsidered to be a failure to satisfy the conditions upon which 
thecertificate was issued, and the certificate may be deemed void 
abinitio.
    (d) The manufacturer bears the burden of establishing to 
thesatisfaction of the Administrator that the conditions upon which 
thecertificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such credits may be revoked based on reviewof 
end-of-year reports, follow-up audits, and any other verificationsteps 
deemed appropriate by the Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57009, Oct. 23, 1998]



Sec. 89.210  Maintenance of records.

    (a) The manufacturer of any nonroad engine that is certified 
underthe averaging, banking, and trading program must establish, 
maintain,and retain the following adequately organized and indexed 
records foreach such engine produced:
    (1) EPA engine family;
    (2) Engine identification number;

[[Page 81]]

    (3) Engine model year and build date,
    (4) Power rating;
    (5) Purchaser and destination; and
    (6) Assembly plant.
    (b) The manufacturer of any nonroad engine family that iscertified 
under the averaging, banking, and trading programs mustestablish, 
maintain, and retain the following adequately organized andindexed 
records for each such family:
    (1) EPA engine family;
    (2) Family emission limits (FEL);
    (3) Power rating for each configuration tested;
    (4) Projected applicable production/sales volume for the modelyear; 
and
    (5) Actual applicable production/sales volume for the model year.
    (c) Any manufacturer producing an engine family participating 
intrading reserved credits must maintain the following records on 
aquarterly basis for each engine family in the trading program:
    (1) The engine family;
    (2) The actual quarterly and cumulative applicableproduction/sales 
volume;
    (3) The values required to calculate credits as given inSec. 
89.207;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer must retain all records required to 
bemaintained under this section for a period of eight years from the 
duedate for the end-of-model-year report. Records may be retained as 
hardcopy or reduced to microfilm, ADP diskettes, and so forth, 
dependingon the manufacturer's record retention procedure; provided, 
that inevery case all information contained in the hard copy is 
retained.
    (e) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, themanufacturer 
must submit to the Administrator the information that themanufacturer is 
required to retain.
    (g) EPA may void ab initio under Sec. 89.126(c) acertificate of 
conformity for an engine family for which themanufacturer fails to 
retain the records required in this section orto provide such 
information to the Administrator upon request.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57009, Oct. 23, 1998]



Sec. 89.211  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine 
family,the actual applicable production/sales volume, the values 
required tocalculate credits as given in Sec. 89.207, and the number 
ofcredits generated/required. Manufacturers must also submit how 
andwhere credit surpluses were dispersed (or are to be banked) and/or 
howand through what means credit deficits were met. Copies of 
contractsrelated to credit trading must be included or supplied by the 
broker,if applicable. The report shall include a calculation of 
creditbalances to show that the summation of the manufacturer's use 
ofcredits results in a credit balance equal to or greater than 
zero,except as allowed under Sec. 89.203(c)(3)(ii). 
Manufacturersparticipating under the program described in Sec. 
89.203(c)(3)(ii) shall include the NMHC + NOX credit balance 
andthe PM credit balance as of December 31 of that calendar year.
    (b) The applicable production/sales volume for end-of-year andfinal 
reports must be based on the location of the point of firstretail sale 
(for example, retail customer, dealer, secondarymanufacturer) also 
called the final product purchase location.
    (c)(1) End-of-year reports must be submitted within 90 days of 
theend of the model year to: Director, Engine Programs and 
ComplianceDivision (6405-J), U.S. Environmental Protection Agency, 401 M 
St.,SW., Washington, DC 20460.
    (2) Final reports must be submitted within 270 days of the end ofthe 
model year to: Director, Engine Programs and Compliance Division(6405-
J), U.S. Environmental Protection Agency, 401 M St., SW.,Washington, DC 
20460.
    (d) Failure by a manufacturer participating in the 
averaging,banking, or trading program to submit any end-of-year or final 
reportsin the specified

[[Page 82]]

time for all engines is a violation of sections203(a)(1) and 213 of the 
Clean Air Act for each engine.
    (e) A manufacturer generating credits for deposit only who failsto 
submit end-of-year reports in the applicable specified time period(90 
days after the end of the model year) may not use the creditsuntil such 
reports are received and reviewed by EPA. Use of projectedcredits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation, may be correctedin the 
final report up to 270 days from the end of the model year.
    (g) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end-of-year or final report previously submitted to 
EPAunder this section, the manufacturer's credits and credit 
calculationswill be recalculated. Erroneous positive credits will be 
void exceptas provided in paragraph (h) of this section. Erroneous 
negativecredit balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA 
reviewdetermines a reporting error in the manufacturer's favor (that 
is,resulting in an increased credit balance) or if the 
manufacturerdiscovers such an error within 270 days of the end of the 
model year,the credits shall be restored for use by the manufacturer.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57009, Oct. 23, 1998]



Sec. 89.212  Notice of opportunity for hearing.

    Any voiding of the certificate underSec. Sec. 89.203(d), 89.206(c), 
89.209(c) or 89.210(g)will be made only after the manufacturer concerned 
has been offered anopportunity for a hearing conducted in accordance 
withSec. Sec. 89.512 and 89.513 and, if a manufacturerrequests such a 
hearing, will be made only after an initial decisionby the Presiding 
Officer.

[63 FR 57010, Oct. 23, 1998]



              Subpart D_Emission Test Equipment Provisions



Sec. 89.301  Scope; applicability.

    (a) This subpart describes the equipment required in order toperform 
exhaust emission tests on new nonroad compression-ignitionengines 
subject to the provisions of subpart B of part 89.
    (b) Exhaust gases, either raw or dilute, are sampled while thetest 
engine is operated using an 8-mode test cycle on an enginedynamometer. 
The exhaust gases receive specific component analysisdetermining 
concentration of pollutant, exhaust volume, the fuel flow,and the power 
output during each mode. Emission is reported as gramsper kilowatt hour 
(g/kw-hr). See subpart E of this part for a completedescription of the 
test procedure.
    (c) General equipment and calibration requirements are given inSec. 
89.304 through 89.324. Sections 89.325 through 89.331set forth general 
test specifications.
    (d) Additional information about system design, 
calibrationmethodologies, and so forth, for raw gas sampling can be 
found in 40CFR part 1065. Examples for system design, calibration 
methodologies,and so forth, for dilute exhaust gas sampling can be found 
in 40 CFRpart 1065.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998, 
as amended at 70 FR 40445, July 13, 2005]



Sec. 89.302  Definitions.

    The definitions in subpart A of this part apply to this subpart.For 
terms not defined in this part, the definitions in 40 CFR part 
86,subparts A, D, I, and N, apply to this subpart.

[63 FR 57010, Oct. 23, 1998]



Sec. 89.303  Symbols/abbreviations.

    (a) The abbreviations in Sec. 86.094-3 or part89.3 of this chapter 
apply to this subpart.
    (b) The abbreviations in Table 1 in appendix A of this subpartapply 
to this subpart. Some abbreviations from Sec. 89.3have been included 
for the convenience of the reader.

[[Page 83]]

    (c) The symbols in Table 2 in appendix A of this subpart applyto 
this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.304  Equipment required for gaseous emissions; overview.

    (a) All engines subject to this subpart are tested for 
exhaustemissions. Engines are operated on dynamometers meeting 
thespecification given in Sec. 89.306.
    (b) The exhaust is tested for gaseous emissions using a raw 
gassampling system as described in Sec. 89.412 or a constantvolume 
sampling (CVS) system as described in Sec. 89.419.Both systems require 
analyzers (see paragraph (c) of this section)specific to the pollutant 
being measured.
    (c) Analyzers used are a non-dispersive infrared (NDIR) 
absorptiontype for carbon monoxide and carbon dioxide analysis; a heated 
flameionization (HFID) type for hydrocarbon analysis; and 
achemiluminescent detector (CLD) or heated chemiluminescent 
detector(HCLD) for oxides of nitrogen analysis. Sections 89.309 through 
89.324set forth a full description of analyzer requirements 
andspecifications.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.305  Equipment measurement accuracy/calibration frequency.

    The accuracy of measurements must be such that the maximumtolerances 
shown in Table 3 in appendix A of this subpart are notexceeded. 
Calibrate all equipment and analyzers according to thefrequencies shown 
in Table 3 in appendix A of this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.306  Dynamometer specifications and calibration weights.

    (a) Dynamometer specifications. The dynamometer test standand other 
instruments for measurement of power output must meet theaccuracy and 
calibration frequency requirements shown in Table 3 inappendix A of this 
subpart. The dynamometer must be capable ofperforming the test cycle 
described in Sec. 89.410.
    (b) Dynamometer calibration weights. A minimum of sixcalibration 
weights for each range used are required. The weights mustbe spaced to 
reflect good engineering judgement such that they coverthe range of 
weights required and must be traceable to within 0.5percent of NIST 
weights. Laboratories located in foreign countries maycertify 
calibration weights to local government bureau standards.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.307  Dynamometer calibration.

    (a) If necessary, follow the dynamometer manufacturer'sinstructions 
for initial start-up and basic operating adjustments.
    (b) Check the dynamometer torque measurement for each range usedby 
the following method:
    (1) Warm up the dynamometer following the dynamometermanufacturer's 
specifications.
    (2) Determine the dynamometer calibration moment arm (adistance/
weight measurement). Dynamometer manufacturer's data, actualmeasurement, 
or the value recorded from the previous calibration usedfor this subpart 
may be used.
    (3) When calibrating the engine flywheel torque transducer, anylever 
arm used to convert a weight or a force through a distance intoa torque 
must be in a horizontal position (5 degrees).
    (4) Calculate the indicated torque (IT) for each calibrationweight 
to be used by:

IT = calibration weight (N) x calibration moment arm (m)

    (5) Attach each calibration weight specified inSec. 89.306 to the 
moment arm at the calibration distancedetermined in paragraph (b)(2) of 
this section. Record the powermeasurement equipment response (N-m) to 
each weight.
    (6) For each calibration weight, compare the torque value measuredin 
paragraph (b)(5) of this section to the calculated torquedetermined in 
paragraph (b)(4) of this section.
    (7) The measured torque must be within either 2 percent of pointor 1 
percent of the engine maximum torque of the calculated torque.

[[Page 84]]

    (8) If the measured torque is not within the aboverequirements, 
adjust or repair the system. Repeat steps in paragraphs(b)(1) through 
(b)(6) of this section with the adjusted or repairedsystem.
    (c) Optional. A master load-cell or transfer standard may be usedto 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibratedwith 
weights at each test weight specified in Sec. 89.306.The calibration 
weights must be traceable to within 0.1 percent ofapplicable national 
standards.
    (2) Warm up the dynamometer following the equipment 
manufacturer'sspecifications.
    (3) Attach the master load-cell and loading system.
    (4) Load the dynamometer to a minimum of 6 equally spaced 
torquevalues as indicated by the master load-cell for each in-use 
rangeused.
    (5) The in-use torque measurement must be within 2 percent of 
thetorque measured by the master system for each load used.
    (6) If the in-use torque is not within 2 percent of the 
mastertorque, adjust or repair the system. Repeat steps in paragraphs 
(c)(2)through (c)(5) of this section with the adjusted or repaired 
system.
    (d) Calibrated resistors may not be used for engine flywheeltorque 
transducer calibration, but may be used to span the transducerprior to 
engine testing.
    (e) Perform other engine dynamometer system calibrations asdictated 
by good engineering practice.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.308  Sampling system requirements for gaseous emissions.

    (a) For each component (pump, sample line section, filters, and 
soforth) in the heated portion of the sampling system that has aseparate 
source of power or heating element, use engineering judgmentto locate 
the coolest portion of that component and monitor thetemperature at that 
location. If several components are within anoven, then only the surface 
temperature of the component with thelargest thermal mass and the oven 
temperature need be measured.
    (b) If water is removed by condensation, the sample gastemperature 
shall be monitored within the water trap or the sampledewpoint shall be 
monitored downstream. In either case, the indicatedtemperature shall not 
exceed 7 [deg]C.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.309  Analyzers required for gaseous emissions.

    (a) Analyzers. The following instruments are required foranalyzing 
the measured gases:
    (1) Carbon Monoxide (CO) analysis. (i) The carbon monoxideanalyzer 
must be of the non-dispersive infrared (NDIR) absorptiontype.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon Dioxide (CO2) analysis. (i) Thecarbon dioxide 
analyzer must be of the non-dispersive infrared (NDIR)absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) [Reserved]
    (4) Hydrocarbon (HC) analysis. (i) The hydrocarbon analyzermust be 
of the heated flame ionization (HFID) type.
    (ii) If the temperature of the exhaust gas at the sample probe 
isbelow 190 [deg]C, the temperature of the valves, pipework, and 
soforth, must be controlled so as to maintain a wall temperature of 
190[deg]C 11 [deg]C. If the temperature of the 
exhaust gas atthe sample probe is above 190 [deg]C, the temperature of 
the valves,pipework, and so forth, must be controlled so as to maintain 
a walltemperature greater than 180 [deg]C.
    (iii) The FID oven must be capable of maintaining temperaturewithin 
5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications inSec. 
89.312.
    (v) The percent of oxygen interference must be less than 3percent, 
as specified in Sec. 89.319(d).
    (5) Oxides of nitrogen (NOX) analysis. (i)This analysis 
device must consist of the subsequent items, followingthe sample probe, 
in the given order:
    (A) Pipework, valves, and so forth, controlled so as to maintain 
awall temperature above 60 [deg]C.

[[Page 85]]

    (B) A NO2 to NO converter. The NO2 toNO 
converter efficiency must be at least 90 percent.
    (C) For raw analysis, an ice bath or other cooling device 
locatedafter the NOX converter (optional for dilute 
analysis).
    (D) A chemiluminescent detector (CLD or HCLD).
    (ii) The quench interference must be less than 3.0 percent 
asmeasured in Sec. 89.318.
    (b) Other gas analyzers yielding equivalent results may be usedwith 
advance approval of the Administrator.
    (c) The following requirements must be incorporated in each 
systemused for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be madeon a 
dry basis (for raw exhaust measurement only). Specificrequirements for 
the means of drying the sample can be found inSec. 89.309(e).
    (2) Calibration or span gases for the NOX 
measurementsystem must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment mustbe 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable methodof 
removing water from the sample. Water removal by condensation 
isacceptable. A water trap performing this function and meeting 
thespecifications in Sec. 89.308(b) is an acceptable method.Means other 
than condensation may be used only with prior approvalfrom the 
Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.310  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers musthave a 
measuring range which allows them to measure the concentrationsof the 
exhaust gas sample pollutants with the accuracies shown inTable 3 in 
Appendix A of this subpart.
    (1) Response time. As necessary, measure and account for theresponse 
time of the analyzer.
    (2) Precision. The precision of the analyzer must be, atworst, 
1 percent of full-scale concentration for each 
rangeused at or above 100 ppm (or ppmC) or 2 
percent for eachrange used below 100 ppm (or ppmC). The precision is 
defined as 2.5times the standard deviation(s) of 10 repetitive responses 
to a givencalibration or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero andcalibration 
or span gases over any 10-second period must not exceed 2percent of 
full-scale chart deflection on all ranges used.
    (4) Zero drift. The analyzer zero-response drift during a 1-hour 
period must be less than 2 percent of full-scale chart deflectionon the 
lowest range used. The zero-response is defined as the meanresponse 
including noise to a zero-gas during a 30-second timeinterval.
    (5) Span drift. The analyzer span drift during a 1-hourperiod must 
be less than 2 percent of full-scale chart deflection onthe lowest range 
used. The analyzer span is defined as the differencebetween the span-
response and the zero-response. The span-response isdefined as the mean 
response including noise to a span gas during a30-second time interval.
    (b) Operating procedure for analyzers and sampling system.Follow the 
start-up and operating instructions of the instrumentmanufacturer. 
Adhere to the minimum requirements given inSec. 89.314 to Sec. 89.323.
    (c) Emission measurement accuracy--Bag sampling. (1)Good engineering 
practice dictates that exhaust emission sampleanalyzer readings below 15 
percent of full-scale chart deflectionshould generally not be used.
    (2) Some high resolution read-out systems, such as computers, 
dataloggers, and so forth, can provide sufficient accuracy and 
resolutionbelow 15 percent of full scale. Such systems may be used 
provided thatadditional calibrations of at least 4 non-zero nominally 
equallyspaced points, using good engineering judgement, below 15 percent 
offull scale are made to ensure the accuracy of the calibration 
curves.If a gas divider is used, the gas divider must conform to the 
accuracyrequirements specified in Sec. 89.312(c). The procedure 
inparagraph (c)(3) of this section may be used for calibration below 
15percent of full scale.

[[Page 86]]

    (3) The following procedure shall be followed:
    (i) Span the analyzer using a calibration gas meeting the 
accuracyrequirements of Sec. 89.312(c), within the operating rangeof 
the analyzer, and at least 90% of full scale.
    (ii) Generate a calibration over the full concentration range at 
aminimum of 6, approximately equally spaced, points (e.g. 15, 30, 45,60, 
75, and 90 percent of the range of concentrations provided by thegas 
divider). If a gas divider or blender is being used to calibratethe 
analyzer and the requirements of paragraph (c)(2) of this sectionare 
met, verify that a second calibration gas between 10 and 20percent of 
full scale can be named within 2 percent of its certifiedconcentration.
    (iii) If a gas divider or blender is being used to calibrate 
theanalyzer, input the value of a second calibration gas (a span gas 
maybe used for the CO2 analyzer) having a named concentration between 
10and 20 percent of full scale. This gas shall be included on 
thecalibration curve. Continue adding calibration points by dividing 
thisgas until the requirements of paragraph (c)(2) of this section 
aremet.
    (iv) Fit a calibration curve per Sec. 89.319 throughSec. 89.322 
for the full scale range of the analyzer usingthe calibration data 
obtained with both calibration gases.
    (d) Emission measurement accuracy--continuoussampling. Analyzers 
used for continuous analysis must be operatedsuch that the measured 
concentration falls between 15 and 100 percentof full-scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or morethan 
100 percent of full scale if automatic range change circuitry isused and 
the limits for range changes are between 15 and 100 percentof full-scale 
chart deflection;
    (2) The analyzer's response may be less than 15 percent of fullscale 
if:
    (i) Alternative (c)(2) of this section is used to ensure that 
theaccuracy of the calibration curve is maintained below 15 percent; or
    (ii) The full-scale value of the range is 155 ppm (or ppmC) orless.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.311  Analyzer calibration frequency.

    (a) Prior to initial use and after major repairs, bench check 
eachanalyzer (see Sec. 89.315).
    (b) Calibrations are performed as specified inSec. Sec. 89.319 
through 89.324.
    (c) At least monthly, or after any maintenance which could 
altercalibration, the following calibrations and checks are performed.
    (1) Leak check the vacuum side of the system (seeSec. 89.316).
    (2) Check that the analysis system response time has been 
measuredand accounted for.
    (3) Verify that the automatic data collection system (if used)meets 
the requirements found in Table 3 in appendix A of this subpart.
    (4) Check the fuel flow measurement instrument to insure that 
thespecifications in Table 3 in appendix A of this subpart are met.
    (d) Verify that all NDIR analyzers meet the water rejection ratioand 
the CO2 rejection ratio as specified inSec. 89.318.
    (e) Verify that the dynamometer test stand and power 
outputinstrumentation meet the specifications in Table 3 in appendix A 
ofthis subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.312  Analytical gases.

    (a) The shelf life of all calibration gases must not be exceeded.The 
expiration date of the calibration gases stated by the gasmanufacturer 
shall be recorded.
    (b) Pure gases. The required purity of the gases is definedby the 
contamination limits given below. The following gases must beavailable 
for operation:
    (1) Purified nitrogen (Contamination <= 1 ppm C, <= 1 ppmCO, <= 400 
ppm CO2, <= 0.1 ppm NO)
    (2) [Reserved]
    (3) Hydrogen-helium mixture (40 2 percent 
hydrogen,balance helium) (Contamination <= 31 ppm C, <= 400 ppm CO)

[[Page 87]]

    (4) Purified synthetic air (Contamination <= 1 ppm C, <=1 ppm CO, <= 
400 ppm CO2, <= 0.1 ppm NO) (Oxygencontent between 18-21 
percent vol.)
    (c) Calibration and span gases. (1) Calibration gas valuesare to be 
derived from NIST Standard Reference Materials (SRM's) orother 
standardized gas samples and are to be single blends as listedin the 
following paragraph.
    (2) Mixtures of gases having the following chemical 
compositionsshall be available:
    (i) C3H8 and purified synthetic air ;
    (ii) C3H8 and purified nitrogen (optionalfor 
raw measurements);
    (iii) CO and purified nitrogen;
    (iv) NOX and purified nitrogen (the amount 
ofNO2 contained in this calibration gas must not exceed 
5percent of the NO content);
    (v) CO2 and purified nitrogen.
    (3) The true concentration of a span gas must be within 2percent of the NIST gas standard. The true 
concentration of acalibration gas must be within 1 
percent of the NIST gasstandard. The use of precision blending devices 
(gas dividers) toobtain the required calibration gas concentrations is 
acceptable,provided that the blended gases are accurate to within 1.5percent of NIST gas standards, or other gas standards 
which have beenapproved by the Administrator. This accuracy implies that 
primarygases used (or blending) must be ``named'' to an accuracyof at 
least 1 percent, traceable to NIST or other 
approvedgas standards. All concentrations of calibration gas shall be 
given ona volume basis (volume percent or volume ppm).
    (4) The gas concentrations used for calibration and span may alsobe 
obtained by means of a gas divider, either diluting with 
purifiedN2 or diluting with purified synthetic air. The 
accuracyof the mixing device must be such that the concentration of 
thediluted gases may be determined to within 2 
percent.
    (d) Oxygen interference check gases shall contain propane with 
350ppmC 75 ppmC hydrocarbon. The three oxygen 
interference gasesshall contain 21%  1% 
O2,10%  1% O2, and5%  1% O2. The concentration valueshall be 
determined to calibration gas tolerances by chromatographicanalysis of 
total hydrocarbons plus impurities or by dynamic blending.Nitrogen shall 
be the predominant diluent with the balance oxygen.
    (e) Fuel for the FID shall be a blend of 40 percent 2percent hydrogen with the balance being helium. The 
mixture shallcontain less than 1 ppm equivalent carbon response; 98 to 
100 percenthydrogen fuel may be used with advance approval of the 
Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygenfor 
raw sampling must be within 1 mole percent of the oxygenconcentration of 
the burner air used in the latest oxygen interferencecheck 
(%O2I). If the difference in oxygen concentration isgreater 
than 1 mole percent, then the oxygen interference must bechecked and, if 
necessary, the analyzer adjusted to meet the%O2I 
requirements. The burner air must contain less than 2ppmC hydrocarbon.
    (g) Gases for the methane analyzer shall be single blends ofmethane 
using air as the diluent.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57010, Oct. 23, 1998]



Sec. 89.313  Initial calibration of analyzers.

    (a) Warming-up time. The warming-up time should be accordingto the 
recommendations of the manufacturer. If not specified, aminimum of two 
hours shall be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. The NDIR analyzer shall be tunedand 
maintained according to the instrument manufacturer'sinstructions. The 
combustion flame of the HFID analyzer shall beoptimized in order to meet 
the specifications inSec. 89.319(b)(2).
    (c) Zero setting and calibration. (1) Using purifiedsynthetic air 
(or nitrogen), the CO, CO2, NOX.and HC analyzers 
shall be set at zero.
    (2) Introduce the appropriate calibration gases to the analyzersand 
the values recorded. The same gas flow rates shall be used as 
whensampling exhaust.

[[Page 88]]

    (d) Rechecking of zero setting. The zero setting shallbe rechecked 
and the procedure described in paragraph (c) of thissection repeated, if 
necessary.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.314  Pre- and post-test calibration of analyzers.

    Each operating range used during the test shall be checked priorto 
and after each test in accordance with the following procedure. 
(Achronic need for parameter adjustment can indicate a need 
forinstrument maintenance.):
    (a) The calibration is checked by using a zero gas and a span 
gaswhose nominal value is between 75 percent and 100 percent of full-
scale, inclusive, of the measuring range.
    (b) After the end of the final mode, a zero gas and the same spangas 
will be used for rechecking. As an option, the zero and span maybe 
rechecked at the end of each mode or each test segment. Theanalysis will 
be considered acceptable if the difference between thetwo measuring 
results is less than 2 percent of full scale.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57011, Oct. 23, 1998]



Sec. 89.315  Analyzer bench checks.

    (a) Prior to initial use and after major repairs verify that 
eachanalyzer complies with the specifications given in Table 3 in 
appendixA of this subpart.
    (b) If a stainless steel NO2 to NO converter is 
used,condition all new or replacement converters. The conditioning 
consistsof either purging the converter with air for a minimum of 4 
hours oruntil the converter efficiency is greater than 90 percent. 
Theconverter must be at operational temperature while purging. Do not 
usethis procedure prior to checking converter efficiency on in-
useconverters.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.316  Analyzer leakage and response time.

    (a) Vacuum side leak check. (1) Any location within theanalysis 
system where a vacuum leak could affect the test results mustbe checked.
    (2) The maximum allowable leakage rate on the vacuum side is 
0.5percent of the in-use flow rate for the portion of the system 
beingchecked. The analyzer flows and bypass flows may be used to 
estimatethe in-use flow rates.
    (3) The sample probe and the connection between the sample probeand 
valve V2 (see Figure 1 in appendix B of this subpart) may beexcluded 
from the leak check.
    (b) [Reserved]
    (c) The response time shall be accounted for in all 
emissionmeasurement and calculations.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57011, Oct. 23, 1998]



Sec. 89.317  NOX converter check.

    (a) Prior to its introduction into service, and monthlythereafter, 
the chemiluminescent oxides of nitrogen analyzer shall bechecked for 
NO2 to NO converter efficiency. Figure 2 inappendix B of this 
subpart is a reference for the followingparagraphs.
    (b) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (c) Zero the oxides of nitrogen analyzer with zero-grade air orzero-
grade nitrogen.
    (d) Connect the outlet of the NOX generator to thesample 
inlet of the oxides of nitrogen analyzer which has been set tothe most 
common operating range.
    (e) Introduce into the NOX generator analyzer-systeman 
NO-in-nitrogen (N2) mixture with an NO concentrationequal to 
approximately 80 percent of the most common operating range.The 
NO2 content of the gas mixture shall be less than 5percent of 
the NO concentration.
    (f) With the oxides of nitrogen analyzer in the NO mode, recordthe 
concentration of NO indicated by the analyzer.
    (g) Turn on the NOX generator O2 (or 
air)supply and adjust the O2 (or air) flow rate so that the 
NOindicated by the analyzer is about 10 percent less than indicated 
inparagraph (f) of this section. Record the concentration of NO in 
thisNO+O2 mixture.

[[Page 89]]

    (h) Switch the NOX generator to the generationmode and 
adjust the generation rate so that the NO measured on theanalyzer is 20 
percent of that measured in paragraph (f) of thissection. There must be 
at least 10 percent unreacted NO at this point.Record the concentration 
of residual NO.
    (i) Switch the oxides of nitrogen analyzer to the NOXmode 
and measure total NOX. Record this value.
    (j) Switch off the NOX generator but maintain gas 
flowthrough the system. The oxides of nitrogen analyzer will indicate 
theNOX in the NO+O2 mixture. Record this value.
    (k) Turn off the NOX generator O2 (or 
air)supply. The analyzer will now indicate the NOX in 
theoriginal NO-in-N2 mixture. This value should be no 
morethan 5 percent above the value indicated in paragraph (f) of 
thissection.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57011, Oct. 23, 1998]



Sec. 89.318  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being 
analyzedcan interfere with the reading in several ways. Positive 
interferenceoccurs in NDIR and PMD instruments when the interfering gas 
gives thesame effect as the gas being measured, but to a lesser 
degree.Negative interference occurs in NDIR instruments by the 
interferinggas broadening the absorption band of the measured gas and in 
CLDinstruments by the interfering gas quenching the radiation. 
Theinterference checks described in this section are to be made 
initiallyand after any major repairs that could affect analyzer 
performance.
    (b) CO analyzer water and CO2 interferencechecks. Prior 
to its introduction into service and annuallythereafter, the NDIR carbon 
monoxide analyzer shall be checked forresponse to water vapor and 
CO2.
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance on the 
mostsensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either zero-grade airor 
zero-grade nitrogen.
    (3) Bubble a mixture of 3 percent CO2 inN2 
through water at room temperature and record analyzerresponse.
    (4) An analyzer response of more than 1 percent of full scale 
forranges above 300 ppm full scale or more than 3 ppm on ranges below 
300ppm full scale requires corrective action. (Use of 
conditioningcolumns is one form of corrective action which may be 
taken.)
    (c) NOX analyzer quench check. The twogases of concern 
for CLD (and HCLD) analyzers are CO2 andwater vapor. Quench 
responses to these two gases are proportional totheir concentrations 
and, therefore, require test techniques todetermine quench at the 
highest expected concentrations experiencedduring testing.
    (1) NOX analyzer CO2 quenchcheck. A CO2 span 
gas having a concentration of 80percent to 100 percent of full scale of 
the maximum operating rangeused during testing shall be passed through 
the CO2 NDIRanalyzer and the value recorded as a. It is 
dilutedapproximately 50 percent with NO span gas and then passed through 
theCO2 NDIR and CLD (or HCLD), with the CO2 andNO 
values recorded as b and c respectively. TheCO2 shall then be 
shut off and only the NO span gas passedthrough the CLD (or HCLD) and 
the NO value recorded as d.Percent CO2 quench shall be 
calculated as follows andshall not exceed 3 percent:
[GRAPHIC] [TIFF OMITTED] TR17JN94.001

Where:

a = Undiluted CO2 concentration (percent)
b = Diluted CO2 concentration (percent)
c = Diluted NO concentration (ppm)
d = Undiluted NO concentration (ppm)

    (2) NOX analyzer water quench check. (i)This check 
applies to wet measurements only. An NO span gas having a

[[Page 90]]

concentration of 80 to 100 percent of full scale of a normaloperating 
range shall be passed through the CLD (or HCLD) and theresponse recorded 
as D. The NO span gas shall then be bubbled throughwater at room 
temperature and passed through the CLD (or HCLD) and theanalyzer 
response recorded as AR. Determine and record the bubblerabsolute 
operating pressure and the bubbler water temperature. (It isimportant 
that the NO span gas contains minimal NO2concentration for 
this check. No allowance for absorption ofNO2 in water has 
been made in the following quenchcalculations. This test may be 
optionally run in the NO mode tominimize the effect of any 
NO2 in the NO span gas.)
    (ii) Calculations for water quench must consider dilution of theNO 
span gas with water vapor and scaling of the water vaporconcentration of 
the mixture to that expected during testing.Determine the mixture's 
saturated vapor pressure (designated asPwb) that corresponds to the 
bubbler water temperature.Calculate the water concentration (Z1, 
percent) in the mixture by thefollowing equation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.002

where

GP = analyzer operating pressure (Pa)

    (iii) Calculate the expected dilute NO span gas and water 
vapormixture concentration (designated as D1) by the followingequation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.003

    (iv)(A) The maximum raw or dilute exhaust water vaporconcentration 
expected during testing (designated as Wm) can beestimated from the 
CO2 span gas (or as defined in theequation in this paragraph 
and designated as A) criteria in paragraph(c)(1) of this section and the 
assumption of a fuel atom H/C ratio of1.8:1 as:

Wm(%)=0.9xA(%)

Where:

A = maximum CO2 concentration expected in the sample system 
duringtesting.

    (B) Percent water quench shall not exceed 3 percent and shall 
becalculated by:
[GRAPHIC] [TIFF OMITTED] TR23OC98.003


[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57011, Oct. 23, 1998; 63 FR 58101, Oct. 29, 1998]



Sec. 89.319  Hydrocarbon analyzer calibration.

    (a) The FID hydrocarbon analyzer shall receive the initial 
andperiodic calibration as described in this section. The HFID used 
withpetroleum-fueled diesel (compression-ignition) engines shall 
beoperated to a set point 5.5 [deg]C between 185 
and 197[deg]C.
    (b) Initial and periodic optimization of detector response.Prior to 
introduction into service and at least annually thereafter,adjust the 
FID hydrocarbon analyzer for optimum hydrocarbon responseas specified in 
this paragraph. Alternate methods yielding equivalentresults may be 
used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrumentstart-up 
and basic operating adjustment using the appropriate fuel(see Sec. 
89.312(e)) and zero-grade air.
    (2) Optimize the FID's response on the most common operatingrange. 
The response is to be optimized with respect to fuel pressureor flow. 
Efforts shall be made to minimize response variations todifferent 
hydrocarbon species that are expected to be in the exhaust.Good 
engineering judgment is

[[Page 91]]

to be used to trade off optimal FIDresponse to propane-in-air against 
reductions in relative responses toother hydrocarbons. A good example of 
trading off response on propanefor relative responses to other 
hydrocarbon species is given inSociety of Automotive Engineers (SAE) 
Paper No. 770141,``Optimization of Flame Ionization Detector for 
Determination ofHydrocarbon in Diluted Automotive Exhausts''; author 
Glenn D.Reschke. It is also required that the response be set to 
optimumcondition with respect to air flow and sample flow. Heated 
FlameIonization Detectors (HFIDs) must be at their specified 
operatingtemperature. One of the following procedures is required for 
FID orHFID optimization:
    (i) The procedure outlined in Society of Automotive Engineers(SAE) 
paper No. 770141, ``Optimization of a Flame IonizationDetector for 
Determination of Hydrocarbon in Diluted AutomotiveExhausts''; author, 
Glenn D. Reschke. This procedure has beenincorporated by reference at 
Sec. 89.6.
    (ii) The HFID optimization procedures outlined in 40 CFR part1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance 
bythe Administrator.
    (iv) The procedures specified by the manufacturer of the FID orHFID.
    (3) After the optimum flow rates have been determined, record 
themfor future reference.
    (c) Initial and periodic calibration. Prior to introductioninto 
service, after any maintenance which could alter calibration, andmonthly 
thereafter, the FID or HFID hydrocarbon analyzer shall becalibrated on 
all normally used instrument ranges using the steps inthis paragraph 
(c). Use the same flow rate and pressures as whenanalyzing samples. 
Calibration gases shall be introduced directly atthe analyzer, unless 
the ``overflow'' calibration optionof 40 CFR part 1065, subpart F, for 
the HFID is taken. New calibrationcurves need not be generated each 
month if the existing curve can beverified as continuing to meet the 
requirements of paragraph (c)(3) ofthis section.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with zero-grade air.
    (3) Calibrate on each used operating range with propane-in-
air(dilute or raw) or propane-in-nitrogen (raw) calibration gases 
havingnominal concentrations starting between 10-15 percent 
andincreasing in at least six incremental steps to 90 percent (e.g., 
15,30, 45, 60, 75, and 90 percent of that range) of that range. 
Theincremental steps are to be spaced to represent good 
engineeringpractice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
ateach data point, concentration values may be calculated by use of 
asingle calibration factor for that range. If the deviation exceeds 
2percent at each non-zero data point and within 0.3 percent offull scale on the zero, the best-fit non-
linear equation whichrepresents the data to within these limits shall be 
used to determineconcentration.
    (d) Oxygen interference optimization (required for raw).Choose a 
range where the oxygen interference check gases will fall inthe upper 50 
percent. Conduct the test, as outlined in this paragraph,with the oven 
temperature set as required by the instrumentmanufacturer. Oxygen 
interference check gas specifications are foundin Sec. 89.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21% oxygen interference gasspecified 
in Sec. 89.312(d).
    (3) Recheck zero response. If it has changed more than 0.5 percentof 
full scale repeat paragraphs (d)(1) and (d)(2) of this section tocorrect 
problem.
    (4) Introduce the 5 percent and 10 percent oxygen interferencecheck 
gases.
    (5) Recheck the zero response. If it has changed more 1percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated 
aspercent O2I) for each mixture in paragraph (d)(4) of 
thissection.

percent O2I = ((B - C) x 100)/B

Where:

A = hydrocarbon concentration (ppmC) of the span gas used inparagraph 
(d)(2) of this section.

[[Page 92]]

B = hydrocarbon concentration (ppmC) of the oxygeninterference check 
gases used in paragraph (d)(4) of this section.
C = analyzer response (ppmC) = A/D; where
D = (percent of full-scale analyzer response due to A) x(percent of 
full-scale analyzer response due to B)

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57011, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.320  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide as described in thissection.
    (b) Initial and periodic interference check. Prior to 
itsintroduction into service and annually thereafter, the NDIR 
carbonmonoxide analyzer shall be checked for response to water vapor 
andCO2 in accordance with Sec. 318.96(b).
    (c) Initial and periodic calibration. Prior to itsintroduction into 
service, after any maintenance which could altercalibration, and every 
two months thereafter, the NDIR carbon monoxideanalyzer shall be 
calibrated. New calibration curves need not begenerated every two months 
if the existing curve can be verified ascontinuing to meet the 
requirements of paragraph (c)(3) of thissection.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either zero-grade airor 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrationsstarting 
between 10 and 15 percent and increasing in at least sixincremental 
steps to 90 percent (e.g., 15, 30, 45, 60, 75, and 90percent) of that 
range. The incremental steps are to be spaced torepresent good 
engineering practice. For each range calibrated, if thedeviation from a 
least-squares best-fit straight line is 2 percent orless of the value at 
each non-zero data point and within 0.3 percent of 
full scale on the zero, concentrationvalues may be calculated by use of 
a single calibration factor forthat range. If the deviation exceeds 
these limits, the best-fit non-linear equation which represents the data 
to within these limits shallbe used to determine concentration.
    (d) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065 may be 
usedin lieu of the procedures specified in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57012, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.321  Oxides of nitrogen analyzer calibration.

    (a) The chemiluminescent oxides of nitrogen analyzer shall 
receivethe initial and periodic calibration described in this section.
    (b) Prior to its introduction into service, and monthlythereafter, 
the chemiluminescent oxides of nitrogen analyzer ischecked for 
NO2 to NO converter efficiency according toSec. 89.317.
    (c) Initial and periodic calibration. Prior to itsintroduction into 
service, after any maintenance which could altercalibration, and monthly 
thereafter, the chemiluminescent oxides ofnitrogen analyzer shall be 
calibrated on all normally used instrumentranges. New calibration curves 
need not be generated each month if theexisting curve can be verified as 
continuing to meet the requirementsof paragraph (c)(3) of this section. 
Use the same flow rate as whenanalyzing samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air orzero-
grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations startingat 
between 10 and 15 percent and increasing in at least sixincremental 
steps to 90 percent (e.g., 15, 30, 45, 60, 75, and 90percent) of that 
range. The incremental steps are to be spaced torepresent good 
engineering practice. For each range calibrated, if thedeviation from a 
least-squares best-fit straight line is 2 percent orless of the value at 
each non-zero data point and within 0.3 percent of 
full scale on the zero, concentrationvalues may be calculated by use of 
a single calibration factor forthat range. If the deviation exceeds 
these limits, the best-fit non-linear equation which represents the data 
to within these limits shallbe used to determine concentration.

[[Page 93]]

    (d) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065 may be 
usedin lieu of the procedures specified in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57012, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.322  Carbon dioxide analyzer calibration.

    (a) Prior to its introduction into service, after any 
maintenancewhich could alter calibration, and bi-monthly thereafter, the 
NDIRcarbon dioxide analyzer shall be calibrated on all normally 
usedinstrument ranges. New calibration curves need not be generated 
eachmonth if the existing curve can be verified as continuing to meet 
therequirements of paragraph (a)(3) of this section. Proceed as follows:
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either zero-grade air 
orzero-grade nitrogen.
    (3) Calibrate on each normally used operating range with 
carbondioxide-in-N2 calibration or span gases having 
nominalconcentrations starting between 10 and 15 percent and increasing 
in atleast six incremental steps to 90 percent (e.g., 15, 30, 45, 60, 
75,and 90 percent) of that range. The incremental steps are to be 
spacedto represent good engineering practice. For each range calibrated, 
ifthe deviation from a least-squares best-fit straight line is 2 
percentor less of the value at each non-zero data point and within 0.3 percent of full scale on the zero, 
concentrationvalues may be calculated by use of a single calibration 
factor forthat range. If the deviation exceeds these limits, the best-
fit non-linear equation which represents the data to within these limits 
shallbe used to determine concentration.
    (b) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065 may be 
usedin lieu of the procedures in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57012, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.323  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow theinstrument 
manufacturer's instructions for initial start-up and basicoperating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for eachrange 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 
0.5percent of full scale, repeat the steps given in paragraphs (b)(1) 
and(b)(2) of this section.
    (4) Record the response of calibration gases having 
nominalconcentrations starting between 10 and 15 percent and increasing 
in atleast six incremental steps to 90 percent of that range. 
Theincremental steps are to be spaced to represent good 
engineeringpractice.
    (5) Generate a calibration curve. The calibration curve shall beof 
fourth order or less, have five or fewer coefficients. If any rangeis 
within 2 percent of being linear a linear calibration may be 
used.Include zero as a data point. Compensation for known impurities in 
thezero gas can be made to the zero-data point. The calibration 
curvemust fit the data points within 2 percent of point.
    (6) Optional. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of 
thissection exists; or
    (ii) The responses generated in paragraph (b)(4) of this sectionare 
within 1 percent of full scale or 2 percent of point, whichever isless, 
of the responses predicted by the calibration curve for thegases used in 
paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range usedmust 
meet the curve fit requirements below 15 percent of full scale.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.324  Calibration of other equipment.

    (a) Other test equipment used for testing shall be calibrated 
asoften as

[[Page 94]]

required by the instrument manufacturer or necessaryaccording to good 
practice.
    (b) If a methane analyzer is used, the methane analyzer shall 
becalibrated prior to introduction into service and monthly thereafter:
    (1) Follow the manufacturer's instructions for instrument startupand 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the methane analyzer with zero-grade air.
    (3) Calibrate on each normally used operating range 
withCH4 in air with nominal concentrations starting between 
10and 15 percent and increasing in at least six incremental steps to 
90percent (e.g., 15, 30, 45, 60, 75, and 90 percent) of that range. 
Theincremental steps are to be spaced to represent good 
engineeringpractice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
ateach non-zero data point and within  0.3 percent 
offull scale on the zero, concentration values may be calculated by 
useof a single calibration factor for that range. If the 
deviationexceeds these limits, the best-fit non-linear equation 
whichrepresents the data to within these limits shall be used to 
determineconcentration.

[63 FR 57013, Oct. 23, 1998]



Sec. 89.325  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within122 
cm of the engine. The measurement location must be made either inthe 
supply system or in the air stream entering the supply system.
    (b) The temperature measurements shall be accurate to within2 [deg]C.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.326  Engine intake air humidity measurement.

    (a) Humidity conditioned air supply. Air that has had itsabsolute 
humidity altered is considered humidity- conditioned air. Forthis type 
of intake air supply, the humidity measurements must be madewithin the 
intake air supply system and after the humidityconditioning has taken 
place.
    (b) Nonconditioned air supply procedure. Humiditymeasurements in 
nonconditioned intake air supply systems must be madein the intake air 
stream entering the supply system. Alternatively,the humidity 
measurements can be measured within the intake air supplystream.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.327  Charge cooling.

    For engines with an air-to-air intercooler (or any other 
lowtemperature charge air cooling device) between the 
turbochargercompressor and the intake manifold, follow SAE J1937. This 
procedurehas been incorporated by reference. See Sec. 89.6. 
Thetemperature of the cooling medium and the temperature of the 
chargeair shall be monitored and recorded.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.328  Inlet and exhaust restrictions.

    (a) The manufacturer is liable for emission compliance over thefull 
range of restrictions that are specified by the manufacturer forthat 
particular engine.
    (b) Perform testing at the following inlet and exhaust 
restrictionsettings.
    (1) Equip the test engine with an air inlet system presenting anair 
inlet restriction within 5 percent of the upper limit at maximumair 
flow, as specified by the engine manufacturer for a clean aircleaner. A 
system representative of the installed engine may be used.In other cases 
a test shop system may be used.
    (2) The exhaust backpressure must be within 5 percent of the 
upperlimit at maximum declared power, as specified by the 
enginemanufacturer. A system representative of the installed engine may 
beused. In other cases a test shop system may be used.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57013, Oct. 23, 1998]



Sec. 89.329  Engine cooling system.

    An engine cooling system is required with sufficient capacity 
tomaintain

[[Page 95]]

the engine at normal operating temperatures as prescribedby the engine 
manufacturer.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



Sec. 89.330  Lubricating oil and test fuels.

    (a) Lubricating oil. Use the engine lubricating oil fortesting that 
meets the requirements as specified by the manufacturerfor a particular 
engine and intended usage. Record the specificationsof the lubricating 
oil used for the test.
    (b) Test fuels. (1) Use diesel fuels for testing which areclean and 
bright, with pour and cloud points adequate for operability.The diesel 
fuel may contain nonmetallic additives as follows: Cetaneimprover, metal 
deactivator, antioxidant, dehazer, antirust, pourdepressant, dye, 
dispersant, and biocide.
    (2) Use petroleum fuel meeting the specifications in Table 4 
inAppendix A of this subpart, or substantially equivalent 
specificationsapproved by the Administrator, for exhaust emission 
testing. The gradeof diesel fuel used must be commercially designated as 
``Type2-D'' grade diesel fuel and recommended by the enginemanufacturer.
    (3) Testing of Tier 1 and Tier 2 engines rated under 37 kW andTier 2 
and Tier 3 engines rated at or above 37 kW that is conducted bythe 
Administrator shall be performed using test fuels that meet 
thespecifications in Table 4 in Appendix A of this subpart and that 
havea sulfur content no higher than 0.20 weight percent.
    (c) Other fuels may be used for testing provided they meet 
thefollowing qualifications:
    (1) They are commercially available;
    (2) Information acceptable to the Administrator is provided toshow 
that only the designated fuel would be used in customer service;
    (3) Use of a fuel listed under paragraph (b) of this section 
wouldhave a detrimental effect on emissions or durability; and
    (4) Fuel specifications are approved in writing by theAdministrator 
prior to the start of testing.
    (d) Report the specification range of the fuel to be used 
underparagraphs (b)(2) and (c)(1) through (c)(4) of this section in 
theapplication for certification in accordance with Sec. 89.115(a)(8).
    (e) Low-sulfur test fuel. (1) Upon request, for enginesrated at or 
above 75 kW in model years 2006 or 2007, the diesel testfuel may be the 
low-sulfur diesel test fuel specified in 40 CFR part1065, subject to the 
provisions of this paragraph (e)(1).
    (i) To use this option, the manufacturer must--
    (A) Ensure that ultimate purchasers of equipment using theseengines 
are informed that the use of fuel meeting the 500 ppmspecification is 
recommended.
    (B) Recommend to equipment manufacturers that a label be appliedat 
the fuel inlet recommending 500 ppm fuel.
    (ii) None of the engines in the engine family may employ sulfur-
sensitive technologies.
    (iii) For engines rated at or above 130 kW, this option may beused 
in 2006 and 2007. For engines rated at or above 75 kW and under130 kW, 
this option may be used only in 2007.
    (2) For model years 2008 through 2010, except as otherwiseprovided, 
the diesel test fuel shall be the low-sulfur diesel testfuel specified 
in 40 CFR part 1065.
    (3) The diesel test fuel shall be the ultra low-sulfur diesel 
testfuel specified in 40 CFR part 1065 for model years 2011 and later.
    (4) For model years 2007 through 2010 engines that use sulfur-
sensitive emission-control technology, the diesel test fuel is theultra 
low-sulfur fuel specified in 40 CFR part 1065 if themanufacturer 
demonstrates that the in-use engines will use only fuelwith 15 ppm or 
less of sulfur.
    (5) Instead of the test fuels described in paragraphs (e)(2)through 
(4) of this section, for model years 2008 and later,manufacturers may 
use the test fuel described in appendix A of thissubpart. In such cases, 
the test fuel described in appendix A of thissubpart shall be the test 
fuel for all manufacturer and EPA testing.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57013, Oct. 23, 1998; 69 FR 39213, June 29, 2004]



Sec. 89.331  Test conditions.

    (a) General requirements. Calculate all volumes andvolumetric flow 
rates at

[[Page 96]]

standard conditions for temperature andpressure (0 [deg]C and 101.3 
kPa), and these conditions must be usedconsistently throughout all 
calculations.
    (b) Engine test conditions. Measure the absolute 
temperature(designated as T and expressed in Kelvin) of the engine air 
atthe inlet to the engine, and the dry atmospheric pressure 
(designatedas p and expressed in kPa), and determine the parameter 
faccording to the following provisions:
    (1) Naturally aspirated and mechanically supercharged engines:
    [GRAPHIC] [TIFF OMITTED] TR17JN94.008
    
    (2) Turbocharged engine with or without cooling of inlet air:
    [GRAPHIC] [TIFF OMITTED] TR17JN94.009
    
    (c) For a test to be recognized as valid, the parameter fshall be 
between the limits as shown below:
[GRAPHIC] [TIFF OMITTED] TR17JN94.010


[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct.23, 1998]



             Sec. Appendix A to Subpart D of Part89--Tables

                 Table 1--Abbreviations Usedin Subpart D
CLD...............................  Chemiluminescent detector.
CO................................  Carbon monoxide.
CO2...............................  Carbon dioxide.
HC................................  Hydrocarbons.
HCLD..............................  Heated chemiluminescent detector.
HFID..............................  Heated flame ionization detector.
GC................................  Gas chromatograph.
NDIR..............................  Non-dispersive infra-red analyzer.
NIST..............................  National Institute for Standards and
                                     Testing.
NO................................  Nitric Oxide.
NO2...............................  Nitrogen Dioxide.
NOX...............................  Oxides of nitrogen.
O2................................  Oxygen.


                Table 2--Symbols Used in Subparts Dand E
------------------------------------------------------------------------
    Symbol                         Term                         Unit
------------------------------------------------------------------------
conc.........  Concentration (ppm by volume)..............  ppm
f............  Engine specific parameter considering
                atmospheric conditions
FFCB.........  Fuel specific factor for the carbon
                balancecalculation
FFD..........  Fuel specific factor for exhaust
                flowcalculation on dry basis
FFH..........  Fuel specific factor representing the
                hydrogento carbon ratio
FFW..........  Fuel specific factor for exhaust
                flowcalculation on wet basis
FR...........  Rate of fuel consumed......................  g/h
GAIRW........  Intake air mass flow rate on wet basis.....  kg/h
GAIRD........  Intake air mass flow rate on dry basis.....  kg/h
GEXHW........  Exhaust gas mass flow rate on wet basis....  kg/h
GFuel........  Fuel mass flow rate........................  kg/h
H............  Absolute humidity (water content related to  g/kg
                dry air).
i............  Subscript denoting an individual mode
KH...........  Humidity correction factor
L............  Percent torque related to maximum torque     %
                for the test mode.
mass.........  Pollutant mass flow........................  g/h
nd, i........  Engine speed (average at the i'th            1/min
                modeduring the cycle).
Ps...........  Dry atmospheric pressure...................  kPa
Pd...........  Test ambient saturation vapor pressure at    kPa
                ambienttemperature.
P............  Observed brake power output uncorrected....  kW
PAUX.........  Declared total power absorbed by             kW
                auxiliariesfitted for the test.
PM...........  Maximum power measured at the test speed     kW
                undertest conditions.
Pi...........  Pi = PM, i +PAUX, i
PB...........  Total barometric pressure (average of the    kPa
                pre-testand post-test values).
Pv...........  Saturation pressure at dew point             kPa
                temperature.
Ra...........  Relative humidity of the ambient air.......  %
S............  Dynamometer setting........................  kW
T............  Absolute temperature at air inlet..........  K
Tbe..........  Air temperature after the charge air cooler  K
                (ifapplicable) (average).
Tclout.......  Coolant temperature outlet (average).......  K
TDd..........  Absolute dewpoint temperature..............  K
Td, i........  Torque (average at the i'th mode duringthe   N-m
                cycle).
TSC..........  Temperature of the intercooled air.........  K
Tref.........  Reference temperature......................  K
VEXHD........  Exhaust gas volume flow rate on drybasis...  m\3\/h
VAIRW........  Intake air volume flow rate on wetbasis....  m\3\/h
PB...........  Total barometric pressure..................  kPa
VEXHW........  Exhaust gas volume flow rate on wetbasis...  m\3\/h
WF...........  Weighing factor

[[Page 97]]

 
WFE..........  Effective weighing factor
------------------------------------------------------------------------


         Table 3--Measurement Accuracy andCalibration Frequency
------------------------------------------------------------------------
                                Calibrationaccuracy       Calibration
No.            Item                     \1\                frequency
------------------------------------------------------------------------
  1  Engine speed...........  2%.
  2  Torque.................  Larger of 2% of
                               point or 1% of
                               enginemaximum.
  3  Fuel consumption (raw    2% of
                               enginemaximum.
  4  Air consumption (raw     2% of
                               enginemaximum.
  5  Coolant temperature....  2[deg]K.
  6  Lubricant temperature..  2[deg]K.
  7  Exhaust backpressure...  1.0% of engine
                               maximum.
  8  Inlet depression.......  1.0% of engine maximum  As required.
  9  Exhaust gas temperature  15[deg]K.
 10  Air inlet temperature    2[deg]K.
 11  Atmospheric pressure...  0.5%.
 12  Humidity (combustion     0.5.
      dry air).
 13  Fuel temperature.......  2[deg]K.
 14  Temperature with regard  2[deg]K.
 15  Dilution air humidity    0.5.
      air).
 16  HC analyzer............  2%.                  required.
 17  CO analyzer............  2%.                  or as required.
 18  NOX analyzer...........  2%.                  required.
 19  Methane analyzer.......  2%.                  required.
 20  NOX converter            90%...................  Monthly.
      efficiency check.
 21  CO2 analyzer...........  2%.                  or asrequired.
------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recordedvalue which
  is inclusive of the data acquisition system.


                                    Table 4--Federal Test FuelSpecifications
----------------------------------------------------------------------------------------------------------------
               Item                                   Procedure (ASTM) \1\                      Value (type2-D)
----------------------------------------------------------------------------------------------------------------
Cetane............................  D613-95.................................................  40-48
Distillation Range:
    IBP, [deg]C...................  D86-97..................................................  171-204
    10% point, [deg]C.............  86-97...................................................  204-238
    50% point, [deg]C.............  86-97...................................................  243-282
    90% point, [deg]C.............  86-97...................................................  293-332
    EP, [deg]C....................  86-97...................................................  321-366
    Gravity, API..................  D287-92.................................................  32-37
Total Sulfur, %mass...............  D129-95 orD2622-98......................................  0.03-0.40
Hydrocarbon composition:
    Aromatics, %vol...............  D1319-98 or D5186-96....................................  \2\ 10
Paraffins, Naphthenes, Olefins....  D1319-98................................................  (\3\)
Flashpoint, [deg]C (minimum)......  D93-97..................................................  54
Viscosity @ 38[deg]C, Centistokes.  D445-97.................................................  2.0-3.2
----------------------------------------------------------------------------------------------------------------
\1\ All ASTM procedures in this table have been incorporatedby reference. See Sec.  89.6.
\2\ Minimum.
\3\ Remainder.


[63 FR 57013, Oct. 23, 1998]

[[Page 98]]



            Sec. Appendix B to Subpart D of Part 89--Figures
[GRAPHIC] [TIFF OMITTED] TC01MR92.000


[[Page 99]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.001



               Subpart E_Exhaust Emission Test Procedures



Sec. 89.401  Scope; applicability.

    (a) This subpart describes the procedures to follow in order 
toperform exhaust emission tests on new nonroad compression-
ignitionengines subject to the provisions of subpart B of this part.
    (b) Exhaust gases, either raw or dilute, are sampled while thetest 
engine is operated using the appropriate test cycle on an 
enginedynamometer. The

[[Page 100]]

exhaust gases receive specific componentanalysis determining 
concentration of pollutant, exhaust volume, thefuel flow (raw analysis), 
and the power output during each mode.Emissions are reported as grams 
per kilowatt hour (g/kW-hr).
    (c) Requirements for emission test equipment and calibrating 
thisequipment are found in subpart D of this part.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57015, Oct. 23, 1998]



Sec. 89.402  Definitions.

    The definitions in subpart A of this part apply to this subpart.For 
terms not defined in this part, the definitions in 40 CFR part 
86,subparts A, D, I, and N, apply to this subpart.

[63 FR 57015, Oct. 23, 1998]



Sec. 89.403  Symbols/abbreviations.

    (a) The abbreviations in Sec. 86.094-3 orSec. 89.3 of this chapter 
apply to this subpart.
    (b) The abbreviations in Table 1 in appendix A to subpart D 
alsoapply to this subpart. Some abbreviations from Sec. 89.3have been 
included for the convenience of the reader.
    (c) The symbols in Table 2 in appendix A to subpart D apply tothis 
subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine 
operatingconditions to be conducted on an engine dynamometer. The 
exhaustgases, generated raw or dilute during engine operation, are 
sampledfor specific component analysis through the analytical train. The 
testis applicable to engines equipped with catalytic or direct-
flameafterburners, induction system modifications, or other systems, or 
touncontrolled engines.
    (b) The test is designed to determine the brake-specific emissionsof 
hydrocarbons, carbon monoxide, oxides of nitrogen, and 
particulatematter. For more information on particulate matter sampling 
seeSec. 89.112(c). The test cycles consist of various steady-state 
operating modes that include different combinations of enginespeeds and 
loads. These procedures require the determination of theconcentration of 
each pollutant, exhaust volume, the fuel flow (rawanalysis), and the 
power output during each mode. The measured valuesare weighted and used 
to calculate the grams of each pollutant emittedper kilowatt hour (g/kW-
hr).
    (c)(1) When an engine is tested for exhaust emissions, thecomplete 
engine shall be tested with all emission control devicesinstalled and 
functioning.
    (2) On air-cooled engines, the fan shall be installed.
    (3) Additional accessories (for example, oil cooler, alternators,or 
air compressors) may be installed but such accessory loading willbe 
considered parasitic in nature and observed power shall be used inthe 
emission calculation.
    (d) All emission control systems installed on or incorporated inthe 
application must be functioning during all procedures in thissubpart. In 
cases of component malfunction or failure, maintenance tocorrect 
component failure or malfunction must be authorized inaccordance with 
Sec. 86.094-25 of this chapter.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57015, Oct. 23, 1998]



Sec. 89.405  Recorded information.

    (a) The information described in this section must be recorded,where 
applicable, for each test.
    (b) Engine description and specification. A copy of theinformation 
specified in this paragraph must accompany each enginesent to the 
Administrator for compliance testing. The manufacturerneed not record 
the information specified in this paragraph for eachtest if the 
information, with the exception of paragraphs (b)(3) and(b)(9) of this 
section, is included in the manufacturer's applicationfor certification.
    (1) Engine-system combination.
    (2) Engine identification numbers.
    (3) Number of hours of operation accumulated on engine.
    (4) Rated maximum horsepower and torque.
    (5) Maximum horsepower and torque speeds.
    (6) Engine displacement.
    (7) Governed speed.

[[Page 101]]

    (8) Idle rpm.
    (9) Fuel consumption at maximum power and torque.
    (10) Maximum air flow.
    (11) Air inlet restriction.
    (12) Exhaust pipe diameter(s).
    (13) Maximum exhaust system backpressure.
    (c) Test data; general. (1) Engine-system combination.
    (2) Engine identification number.
    (3) Instrument operator.
    (4) Engine operator.
    (5) Number of hours of operation accumulated on the engine priorto 
beginning the warm-up portion of the test.
    (6) Fuel identification.
    (7) Date of most recent analytical assembly calibration.
    (8) All pertinent instrument information such as tuning, gain,serial 
numbers, detector number, and calibration curve numbers. Aslong as this 
information is available for inspection by theAdministrator, it may be 
summarized by system number or analyzeridentification numbers.
    (d) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Intermediate speed and rated speed as defined inSec. 89.2 and 
maximum observed torque for these speeds.
    (4) Recorder chart or equivalent. Identify the zero traces foreach 
range used, and span traces for each range used.
    (5) Air temperature after and pressure drop across the charge 
aircooler (if applicable) at maximum observed torque and rated speed.
    (e) Test data; modal. (1) Recorder chart or equivalent.Identify for 
each test mode the emission concentration traces and theassociated 
analyzer range(s). Identify the start and finish of eachtest.
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Record engine torque and engine rpm continuously during eachmode 
with a chart recorder or equivalent recording device.
    (5) Intake air flow (for raw mass flow sampling method only) 
anddepression for each mode.
    (6) Engine intake air temperature at the engine intake 
orturbocharger inlet for each mode.
    (7) Mass fuel flow (for raw sampling) for each mode.
    (8) Engine intake humidity.
    (9) Coolant temperature outlet.
    (10) Engine fuel inlet temperature at the pump inlet.
    (f) Test data; post-test. (1) Recorder chart or equivalent.Identify 
the zero traces for each range used and the span traces foreach range 
used. Identify hangup check, if performed.
    (2) Total number of hours of operation accumulated on the engine.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57015, Oct. 23, 1998]



Sec. 89.406  Pre-test procedures.

    (a) Allow a minimum of 30 minutes warmup in the standby oroperating 
mode prior to spanning the analyzers.
    (b) Replace or clean the filter elements and then vacuum leakcheck 
the system per Sec. 89.316(a). Allow the heated sampleline, filters, 
and pumps to reach operating temperature.
    (c) Perform the following system checks:
    (1) Check the sample-line temperatures (seeSec. 89.309(a)(4)(ii) 
and (a)(5)(i)(A)).
    (2) Check that the system response time has been accounted forprior 
to sample collection data recording.
    (3) A hang-up check is permitted, but is optional.
    (d) Check analyzer zero and span at a minimum before and aftereach 
test. Further, check analyzer zero and span any time a rangechange is 
made or at the maximum demonstrated time span for stabilityfor each 
analyzer used.
    (e) Check system flow rates and pressures.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56995, 
57015, Oct. 23, 1998]



Sec. 89.407  Engine dynamometer test run.

    (a) Measure and record the temperature of the air supplied to 
theengine, the fuel temperature, the intake air humidity, and 
theobserved barometric pressure during the sampling for each mode. 
Thefuel temperature shall be less than or equal to 43C during 
thesampling for each mode.

[[Page 102]]

    (b) The governor and fuel system shall have been adjusted toprovide 
engine performance at the levels reported in the applicationfor 
certification required under Sec. 89.115.
    (c) The following steps are taken for each test:
    (1) Install instrumentation and sample probes as required.
    (2) Perform the pre-test procedure as specified inSec. 89.406.
    (3) Read and record the general test data as specified inSec. 
89.405(c).
    (4) Start cooling system.
    (5) Precondition (warm up) the engine in the following manner:
    (i) For variable-speed engines:
    (A) Operate the engine at idle for 2 to 3 minutes;
    (B) Operate the engine at approximately 50 percent power at thepeak 
torque speed for 5 to 7 minutes;
    (C) Operate the engine at rated speed and maximum horsepower for25 
to 30 minutes;
    (ii) For constant-speed engines:
    (A) Operate the engine at minimum load for 2 to 3 minutes;
    (B) Operate the engine at 50 percent load for 5 to 7 minutes;
    (C) Operate the engine at maximum load for 25 to 30 minutes;
    (iii) Optional. It is permitted to precondition the engine atrated 
speed and maximum horsepower until the oil and watertemperatures are 
stabilized. The temperatures are defined asstabilized if they are 
maintained within 2 percent of point on anabsolute basis for 2 minutes. 
The engine must be operated a minimum of10 minutes for this option. This 
optional procedure may be substitutedfor the procedure in paragraph 
(c)(5)(i)or (c)(5)(ii) of this section;
    (iv) Optional. If the engine has been operating on 
serviceaccumulation for a minimum of 40 minutes, the service 
accumulation maybe substituted for the procedure in paragraphs (c)(5)(i) 
through (iii)of this section.
    (6) Read and record all pre-test data specified inSec. 89.405(d).
    (7) Start the test cycle (see Sec. 89.410) within 20minutes of the 
end of the warmup. (See paragraph (c)(13) of thissection.) A mode begins 
when the speed and load requirements arestabilized to within the 
requirements of Sec. 89.410(b). Amode ends when valid emission sampling 
for that mode ends. For a modeto be valid, the speed and load 
requirements must be maintainedcontinuously during the mode. Sampling in 
the mode may be repeateduntil a valid sample is obtained as long the 
speed and torquerequirements are met.
    (8) Calculate the torque for any mode with operation at ratedspeed.
    (9) During the first mode with intermediate speed operation, 
ifapplicable, calculate the torque corresponding to 75 and 50 percent 
ofthe maximum observed torque for the intermediate speed.
    (10) Record all modal data specified in Sec. 89.405(e)during a 
minimum of the last 60 seconds of each mode.
    (11) Record the analyzer(s) response to the exhaust gas during thea 
minimum of the last 60 seconds of each mode.
    (12) Test modes may be repeated, as long as the engine 
ispreconditioned by running the previous mode. In the case of the 
firstmode of any cycle, precondition according to paragraph (c)(5) of 
thissection.
    (13) If a delay of more than 20 minutes, but less than 4 
hours,occurs between the end of one mode and the beginning of another 
mode,precondition the engine by running the previous mode. If the 
delayexceeds 4 hours, the test shall include preconditioning (begin 
atparagraph (c)(2) of this section).
    (14) The speed and load points for each mode are listed in Tables1 
through 4 of Appendix B of this subpart. The engine speed and loadshall 
be maintained as specified in Sec. 89.410(b).
    (15) If at any time during a test mode, the test 
equipmentmalfunctions or the specifications in paragraph (c)(14) of 
thissection are not met, the test mode is void and may be aborted. 
Thetest mode may be restarted by preconditioning with the previous mode.
    (16) Fuel flow and air flow during the idle load condition may 
bedetermined just prior to or immediately following the 
dynamometersequence, if longer times are required for accurate 
measurements.
    (d) Exhaust gas measurements. (1) Measure HC, CO,CO2, and 
NOX concentration in the exhaustsample.

[[Page 103]]

    (2) Each analyzer range that may be used during a test modemust have 
the zero and span responses recorded prior to the executionof the test. 
Only the zero and span for the range(s) used to measurethe emissions 
during the test are required to be recorded after thecompletion of the 
test.
    (3) It is permissible to change filter elements between testmodes.
    (4) A leak check is permitted between test segments.
    (5) A hangup check is permitted between test segments.
    (6) If, during the emission measurement portion of a test 
segment,the value of the gauges downstream of the NDIR analyzer(s) G3 
orG4 (see Figure 1 in appendix B to subpart D) differs by morethan 
0.5 kPa from the pretest value, the test segment 
isvoid.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57015, Oct. 23, 1998]



Sec. 89.408  Post-test procedures.

    (a) A hangup check is recommended at the completion of the lasttest 
mode using the following procedure:
    (1) Within 30 seconds introduce a zero-grade gas or room air intothe 
sample probe or valve V2 (see Figure 1 in appendix B tosubpart D) to 
check the ``hangup zero'' response.Simultaneously start a time 
measurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement 
inparagraph (a)(1) of this section, the difference between the span-
zeroresponse and the hangup zero response shall not be greater than 
5.0percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within 6 minutes after 
thecompletion of the last mode in the test. Record for each analyzer 
thezero and span response
    (c) If during the test, the filter element(s) were replaced 
orcleaned, as of Sec. 89.316(a), the test is void.
    (d) Record the post-test data specified inSec. 89.405(f).
    (e) For a valid test, the zero and span checks performed beforeand 
after each test for each analyzer must meet the followingrequirements:
    (1) The span drift (defined as the change in the differencebetween 
the zero response and the span response) must not exceed 3percent of 
full-scale chart deflection for each range used.
    (2) The zero response drift must not exceed 3 percent of full-scale 
chart deflection.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57016, Oct. 23, 1998]



Sec. 89.409  Data logging.

    (a) A computer or any other automatic data processing device(s)may 
be used as long as the system meets the requirements of thissubpart.
    (b) Determine from the data collection records the analyzerresponses 
corresponding to the end of each mode.
    (c) Record data at a minimum of once every 5 seconds.
    (d) Determine the final value for CO2, CO, HC, 
andNOX concentrations by averaging the concentration of 
eachpoint taken during the sample period for each mode.
    (e) For purposes of this section, calibration data 
includescalibration curves, linearity curves, span-gas responses, and 
zero-gasresponses.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.410  Engine test cycle.

    (a) Emissions shall be measured using one of the test 
cyclesspecified in Tables 1 through 4 of Appendix B of this subpart, 
subjectto the provisions of paragraphs (a)(1) through (a)(4) of this 
section.These cycles shall be used to test engines on a dynamometer.
    (1) The 8-mode test cycle described in Table 1 of Appendix B ofthis 
subpart shall be used for all engines, except constant speedengines, 
engines rated under 19 kW, and propulsion marine dieselengines.
    (2) The 5-mode test cycle described in Table 2 of Appendix B ofthis 
subpart shall be used for constant-speed engines as defined inSec. 
89.2. Any engine certified under this test cycle mustmeet the labeling 
requirements of Sec. 89.110(b)(11).
    (3) The 6-mode test cycle described in Table 3 of Appendix B ofthis 
subpart shall be used for variable speed engines rated under 19kW.
    (4) Notwithstanding the provisions of paragraphs (a)(1) 
through(a)(3) of this

[[Page 104]]

section, the 4-mode test cycle described in Table4 of Appendix B of this 
subpart shall be used for propulsion marinediesel engines.
    (5) Notwithstanding the provisions of paragraphs (a)(1) 
through(a)(4) of this section:
    (i) Manufacturers may use the 8-mode test cycle described in Table1 
of Appendix B of this subpart for:
    (A) Constant speed engines, or variable speed engines rated under19 
kW; or
    (B) Propulsion marine diesel engines, provided the propulsionmarine 
diesel engines are certified in an engine family that includesprimarily 
non-marine diesel engines, and the manufacturer obtainsadvance approval 
from the Administrator.
    (ii) The Administrator may use the 8-mode test cycle specified 
inTable 1 of Appendix B of this subpart during testing of any 
enginewhich was certified based on emission data collected from that 
testcycle.
    (b) During each non-idle mode, hold the specified load to within 
2percent of the engine maximum value and speed to within 2percent of point. During each idle mode, speed must be 
held within themanufacturer's specifications for the engine, and the 
throttle must bein the fully closed position and torque must not exceed 
5 percent ofthe peak torque value of mode 5.
    (c) For any mode except those involving either idle or full-
loadoperation, if the operating conditions specified in paragraph (b) 
ofthis section cannot be maintained, the Administrator may 
authorizedeviations from the specified load conditions. Such deviations 
shallnot exceed 10 percent of the maximum torque at the test speed. 
Theminimum deviations above and below the specified load necessary 
forstable operation shall be determined by the manufacturer and 
approvedby the Administrator prior to the test run.
    (d) Power generated during the idle mode may not be included inthe 
calculation of emission results.
    (e) Manufacturers may optionally use the ramped-modal duty 
cyclescorresponding to the discrete-mode duty cycles specified in 
thissection, as described in 40 CFR 1039.505.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57016, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.411  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. Theanalyzer 
response may be read by automatic data collection (ADC)equipment such as 
computers, data loggers, and so forth. If ADCequipment is used, the 
following is required:
    (1) For bag sample analysis, the analyzer response must be stableat 
greater than 99 percent of the final reading for the dilute 
exhaustsample bag. A single value representing the average chart 
deflectionover a 10-second stabilized period shall be stored.
    (2) For continuous analysis systems, a single value representingthe 
average integrated concentration over a cycle shall be stored.
    (3) The chart deflections or average integrated 
concentrationsrequired in paragraphs (a)(1) and (a)(2) of this section 
may be storedon long-term computer storage devices such as computer 
tapes, storagediscs, punch cards, and so forth, or they may be printed 
in a listingfor storage. In either case a chart recorder is not required 
andrecords from a chart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the 
ADCequipment is subject to the calibration specifications of the 
analyzeras if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may 
bestored as chart recorder records.
    (c) Bag sample analysis. For bag sample analysis perform 
thefollowing sequence:
    (1) Warm up and stabilize the analyzers; clean and/or replacefilter 
elements, conditioning columns (if used), and so forth, asnecessary.
    (2) Obtain a stable zero reading.
    (3) Zero and span the analyzers with zero and span gases. The 
spangases must have concentrations between 75 and 100 percent of full-
scale chart deflection. The flow rates and system

[[Page 105]]

pressuresduring spanning shall be approximately the same as those 
encounteredduring sampling. A sample bag may be used to identify the 
requiredanalyzer range.
    (4) Recheck zero response. If this zero response differs from 
thezero response recorded in paragraph (c)(3) of this section by 
morethan 1 percent of full scale, then paragraphs (c)(2), (c)(3), and 
(c)(4) of this section must be repeated.
    (5) If a chart recorder is used, identify and record the mostrecent 
zero and span response as the pre-analysis values.
    (6) If ADC equipment is used, electronically record the mostrecent 
zero and span response as the pre-analysis values.
    (7) Measure HC, CO, CO2, and NOXbackground 
concentrations in the sample bag(s) with approximately thesame flow 
rates and pressures used in paragraph (c)(3) of thissection. 
(Constituents measured continuously do not require baganalysis.)
    (8) A post-analysis zero and span check of each range must 
beperformed and the values recorded. The number of events that may 
occurbetween the pre- and post-analysis checks is not specified. 
However,the difference between pre-analysis zero and span values 
(recorded inparagraph (c)(5) or (c)(6) of this section) versus those 
recorded forthe post-analysis check may not exceed the zero drift limit 
or thespan drift limit of 2 percent of full-scale chart deflection for 
anyrange used. Otherwise the test is void.
    (d) Continuous sample analysis. For continuous sampleanalysis 
perform the following sequence:
    (1) Warm up and stabilize the analyzers; clean and/or replacefilter 
elements, conditioning columns (if used), and so forth, asnecessary.
    (2) Leak check portions of the sampling system that operate 
atnegative gauge pressures when sampling, and allow heated sample 
lines,filters, pumps, and so forth to stabilize at operating 
temperature.
    (3) Optional: Perform a hangup check for the HFID sampling system:
    (i) Zero the analyzer using zero air introduced at the analyzerport.
    (ii) Flow zero air through the overflow sampling system. Check 
theanalyzer response.
    (iii) If the overflow zero response exceeds the analyzer 
zeroresponse by 2 percent or more of the HFID full-scale 
deflection,hangup is indicated and corrective action must be taken.
    (iv) The complete system hangup check specified in paragraph (e)of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Zero and span each range to be used on each analyzer 
operatedprior to the beginning of the test cycle. The span gases shall 
have aconcentration between 75 and 100 percent of full-scale 
chartdeflection. The flow rates and system pressures shall be 
approximatelythe same as those encountered during sampling. The HFID 
analyzer shallbe zeroed and spanned either through the overflow sampling 
system orthrough the analyzer port.
    (6) Re-check zero response. If this zero response differs from 
thezero response recorded in paragraph (d)(5) of this section by 
morethan 1 percent of full scale, then paragraphs (d)(4), (d)(5), and 
(d)(6) of this section must be repeated.
    (7) If a chart recorder is used, identify and record the mostrecent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the mostrecent 
zero and span response as the pre-analysis values.
    (9) Collect background HC, CO, CO2, andNOX in 
a sample bag (for dilute exhaust sampling only, seeSec. 89.420).
    (10) Perform a post-analysis zero and span check for each rangeused 
at the conditions specified in paragraph (d)(5) of this section.Record 
these responses as the post-analysis values.
    (11) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 3percent 
for HC, or 2 percent for NOX. CO, andCO2, of full 
scale chart deflection, or the test is void.(If the HC drift is greater 
than 3 percent of full-scale chartdeflection, hydrocarbon hangup is 
likely.)
    (12) Determine background levels of NOX. CO, 
orCO2 (for dilute exhaust

[[Page 106]]

sampling only) by the bagsample technique outlined in paragraph (c) of 
this section.
    (e) Hydrocarbon hangup. If HC hangup is indicated, thefollowing 
sequence may be performed:
    (1) Fill a clean sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzerports.
    (4) Analyze the background air through the entire sample 
probesystem.
    (5) If the difference between the readings obtained greater thanor 
equal to 2 percent of full scale deflection, clean the sample probeand 
the sample line.
    (6) Reassemble the sample system, heat to specified temperature,and 
repeat the procedure in paragraphs (e)(1) through (e)(6) of thissection.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57016, Oct. 23, 1998]



Sec. 89.412  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling andanalytical system 
which may be used for testing under this subpart isshown in Figure 1 in 
appendix B to subpart D. All components or partsof components that are 
wetted by the sample or corrosive calibrationgases shall be either 
chemically cleaned stainless steel or inertmaterial, for example, 
polytetrafluoroethylene resin. The use of``gauge savers'' or 
``protectors'' withnonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe shall be a straight,closed-
end, stainless steel, multi-hole probe. The inside diametershall not be 
greater than the inside diameter of the sample line plus0.03 cm. The 
wall thickness of the probe shall not be greater than0.10 cm. The 
fitting that attaches the probe to the exhaust pipe shallbe as small as 
practical in order to minimize heat loss from theprobe.
    (2) The probe shall have a minimum of three holes. The spacing ofthe 
radial planes for each hole in the probe must be such that theycover 
approximately equal cross-sectional areas of the exhaust duct.See Figure 
1 in appendix A to this subpart. The angular spacing of theholes must be 
approximately equal. The angular spacing of any twoholes in one plane 
may not be 180[deg] 20[deg] (that is,section view 
C-C of Figure 1 in appendix A to this subpart). The holesshould be sized 
such that each has approximately the same flow. Ifonly three holes are 
used, they may not all be in the same radialplane.
    (3) The probe shall extend radially across the exhaust duct. 
Theprobe must pass through the approximate center and must extend 
acrossat least 80 percent of the diameter of the duct.
    (c) Sample transfer line. (1) The maximum inside diameter ofthe 
sample line shall not exceed 1.32 cm.
    (2) If valve V2 is used, the sample probe must connectdirectly to 
valve V2. The location of optional valve V2may not be greater than 1.22 
m from the exhaust duct.
    (3) The location of optional valve V16 may not be greater than 61cm 
from the sample pump.
    (d) Venting. All vents, including analyzer vents, bypassflow, and 
pressure relief vents of regulators, should be vented insuch a manner to 
avoid endangering personnel in the immediate area.
    (e) Any variation from the specifications in this subpartincluding 
performance specifications and emission detection methodsmay be used 
only with prior approval by the Administrator.
    (f) Additional components, such as instruments, valves, 
solenoids,pumps, switches, and so forth, may be employed to provide 
additionalinformation and coordinate the functions of the component 
systems.
    (g) The following requirements must be incorporated in each 
systemused for raw testing under this subpart.
    (1) [Reserved]
    (2) The sample transport system from the engine exhaust pipe tothe 
HC analyzer and the NOX analyzer must be heated asindicated 
in Figure 1 in appendix B of subpart D.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57016, Oct. 23, 1998]

[[Page 107]]



Sec. 89.413  Raw sampling procedures.

    Follow these procedures when sampling for gaseous emissions.
    (a) The gaseous emission sampling probe must be installed at 
least0.5 m or 3 times the diameter of the exhaust pipe--whichever isthe 
larger--upstream of the exit of the exhaust gas system.
    (b) In the case of a multi-cylinder engine with a branched 
exhaustmanifold, the inlet of the probe shall be located sufficiently 
fardownstream so as to ensure that the sample is representative of 
theaverage exhaust emissions from all cylinders.
    (c) In multi-cylinder engines having distinct groups of 
manifolds,such as in a ``Vee'' engine configuration, it ispermissible 
to:
    (1) Sample after all exhaust pipes have been connected togetherinto 
a single exhaust pipe.
    (2) For each mode, sample from each exhaust pipe and average 
thegaseous concentrations to determine a value for each mode.
    (3) Sample from all exhaust pipes simultaneously with the 
samplelines connected to a common manifold prior to the analyzer. It 
must bedemonstrated that the flow rate through each individual sample 
line is4 percent of the average flow rate through 
all the samplelines.
    (4) Use another method, if it has been approved in advance by 
theAdministrator.
    (d) All gaseous heated sampling lines shall be fitted with aheated 
filter to extract solid particles from the flow of gas requiredfor 
analysis. The sample line for CO and CO2 analysis maybe 
heated or unheated.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57016, Oct. 23, 1998]



Sec. 89.414  Air flow measurement specifications.

    (a) The air flow measurement method used must have a range 
largeenough to accurately measure the air flow over the engine 
operatingrange during the test. Overall measurement accuracy must 
be 2 percent of the maximum engine value for all 
modes.The Administrator must be advised of the method used prior to 
testing.
    (b) When an engine system incorporates devices that affect the 
airflow measurement (such as air bleeds) that result in 
understatedexhaust emission results, corrections to the exhaust emission 
resultsshall be made to account for such effects.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57017, Oct. 23, 1998]



Sec. 89.415  Fuel flow measurement specifications.

    The fuel flow rate measurement instrument must have a 
minimumaccuracy of 2 percent of the engine maximum fuel flow rate. 
Thecontrolling parameters are the elapsed time measurement of the 
eventand the weight or volume measurement.

[63 FR 57017, Oct. 23, 1998]



Sec. 89.416  Raw exhaust gas flow.

    The exhaust gas flow shall be determined by one of the 
methodsdescribed in this section and conform to the tolerances of Table 
3 inappendix A to subpart D:
    (a) Measurement of the air flow and the fuel flow by 
suitablemetering systems (for details see SAE J244. This procedure has 
beenincorporated by reference. See Sec. 89.6.) and calculationof the 
exhaust gas flow as follows:

GEXHW = GAIRW +GFUEL (for wet exhaust 
    mass)

or

VEXHD = VAIRD + (-.767) xGFUEL (for dry 
    exhaust volume)


or

VEXHW = VAIRW + .749 xGFUEL (for wet 
    exhaust volume)

    (b) Exhaust mass calculation from fuel consumption (seeSec. 89.415) 
and exhaust gas concentrations using the methodfound in Sec. 89.418.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.417  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emission recording, the last 
60seconds of each mode are recorded, and the average values for HC, 
CO,CO2, and NOX during each mode are 
determinedfrom

[[Page 108]]

the average concentration readings determined from thecorresponding 
calibration data.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.418  Raw emission sampling calculations.

    (a) The final test results shall be derived through the 
stepsdescribed in this section.
    (b) The exhaust gas flow rate GEXHW andVEXHW 
shall be determined for each mode.
    (1) For measurements using the mass flow method, seeSec. 89.416(a).
    (2) For measurements using the fuel consumption and exhaust 
gasconcentrations method, use the following equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.004

Where:
[GRAPHIC] [TIFF OMITTED] TR23OC98.005

[GRAPHIC] [TIFF OMITTED] TR23OC98.006

[GRAPHIC] [TIFF OMITTED] TR23OC98.007

[GRAPHIC] [TIFF OMITTED] TR23OC98.008


K = 3.5
    (3) Humidity values may be calculated from either one of 
thefollowing equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.009


or

[[Page 109]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.010

    (c) When applying GEXHW, the measured``dry'' 
concentration shall be corrected to a wet basis,if not already measured 
on a wet basis. This section is applicableonly for measurements made on 
raw exhaust gas. Correction to a wetbasis shall be according to the 
following formula:

ConcWET = Kw x ConcDRY

Where:

KW is determined according to the equations inparagraph 
(c)(1) or (c)(2) of this section.

    (1) For measurements using the mass flow method (seeSec. 
89.416(a)):
[GRAPHIC] [TIFF OMITTED] TR23OC98.011

[GRAPHIC] [TIFF OMITTED] TR23OC98.012

[GRAPHIC] [TIFF OMITTED] TR23OC98.013

[alpha] = H/C mole ratio of the fuel.

    (2) For measurements using the fuel consumption and exhaust 
gasconcentrations method (see Sec. 89.416(b)):
[GRAPHIC] [TIFF OMITTED] TR23OC98.014

Where:
[GRAPHIC] [TIFF OMITTED] TR23OC98.015

    (d) As the NOX emission depends on intake airconditions, 
the NOX concentration shall be corrected forintake air 
temperature and humidity with the factor Khgiven in the 
following formula. For engines operating on alternativecombustion 
cycles, other correction formulas may be used if they canbe justified or 
validated. The formula follows:

[[Page 110]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.016

    (e) The pollutant mass flow for each mode shall be calculated 
asfollows:

Gas mass = u x Gas conc. xGEXHW
Gas mass = v x Gas conc. xVEXHD
Gas mass = w x Gas conc. xVEXHW
    The coefficients u (wet), v (dry), and w (wet)are to be used 
according to the following table:

----------------------------------------------------------------------------------------------------------------
                  Gas                           u               v               w                 conc.
----------------------------------------------------------------------------------------------------------------
NOX....................................        0.001587         0.00205        0.00205   ppm.
CO.....................................        0.000966         0.00125        0.00125   ppm.
HC.....................................        0.000478  ..............        0.000618  ppm.
CO2....................................       15.19            19.64          19.64      percent.
----------------------------------------------------------------------------------------------------------------
Note: The given coefficients u, v, and w are calculated for273.15 [deg]K (0 [deg]C) and 101.3 kPa. In cases
  where the referenceconditions vary from those stated, an error may occur in thecalculations.

    (f) The following equations may be used to calculate thecoefficients 
u, v, and w in paragraph (e) of this section for otherconditions of 
temperature and pressure:
    (1) For the calculation of u, v, and w for NOX 
(asNO2), CO, HC (in paragraph (e) of this section 
asCH1.80), CO2, and O2:

Where:

w = 4.4615.10-5x M if conc. in ppm
w = 4.4615.10-1x M if conc. in percent
v = w
u = w/[rho]Air
M = Molecular weight
[rho]Air = Density of dry air at 273.15 [deg]K (0[deg]C), 
101.3 kPa = 1.293 kg/m\3\
    (2) For real gases at 273.15 [deg]K (0 [deg]C) and 101.3 kPa:For the 
calculation of u, v, and w

w = gas x 10-6 if conc. in ppm
v = w
u = w/pAir
pGas = Density of measured gas at 0 [deg]C,101.3 kPas in g/
m\3\

    (3) General formulas for the calculation of concentrations 
attemperature (designated as T) and pressure (designated asp):


--for ideal gases
[GRAPHIC] [TIFF OMITTED] TR17JN94.017

--for real gases
[GRAPHIC] [TIFF OMITTED] TR17JN94.018


with:

1% = 10\4\ ppm
M = Molecular weight in g/Mo1
Mv = Molecular Volume = 22.414 x10-3 m\3\/Mol for 
ideal gases
T = reference temperature 273.15 K
p = reference pressure 101.3 kPa
T = Temperature in [deg]C
p = pressure in kPa
pGas = Density of the measured gas at 0 [deg]C,101.3 kPa
Conc. = Gas concentration

    (g)(1) The emission shall be calculated for all individualcomponents

[[Page 111]]

in the following way where power at idle is equal tozero:
[GRAPHIC] [TIFF OMITTED] TR23OC98.017

    (2) The weighting factors and the number of modes (n) used in 
thecalculation in paragraph (g)(1) of this section are according toSec. 
89.410.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57017, Oct. 23, 1998]



Sec. 89.419  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described inthis 
section is designed to measure the true mass of gaseous emissionsin the 
exhaust of petroleum-fueled nonroad compression-ignitionengines. This 
system utilizes the CVS concept (described in 40 CFRpart 1065, subparts 
A and B) of measuring mass emissions of HC, CO,and CO2. A 
continuously integrated system is required forHC and NOX 
measurement and is allowed for all CO andCO2 measurements. 
The mass of gaseous emissions isdetermined from the sample concentration 
and total flow over the testperiod. As an option, the measurement of 
total fuel mass consumed overa cycle may be substituted for the exhaust 
measurement ofCO2. General requirements are as follows:
    (1) This sampling system requires the use of a PDP-CVS and a 
heatexchanger or a CFV-CVS with either a heat exchanger or electronic 
flowcompensation. Figure 2 in appendix A to this subpart is a 
schematicdrawing of the PDP-CVS system. Figure 3 in appendix A to this 
subpartis a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system for petroleum-fueled compression-
ignition engines requires a heated flame ionization detector (HFID)and 
heated sample system (191 11 [deg]C).
    (i) The HFID sample must be taken directly from the dilutedexhaust 
stream through a heated probe and integrated continuously overthe test 
cycle. Unless compensation for varying flow is made, the HFIDmust be 
used with a constant flow system to ensure a representativesample.
    (ii) The heated probe shall be located in the primary dilutiontunnel 
and far enough downstream of the mixing chamber to ensure auniform 
sample distribution across the CVS duct at the point ofsampling.
    (3) The CO and CO2 analytical system requires:
    (i) Bag sampling (see 40 CFR part 1065) and analyticalcapabilities 
(see 40 CFR part 1065), as shown in Figure 2 and Figure 3in appendix A 
to this subpart; or
    (ii) Continuously integrated measurement of diluted CO 
andCO2 meeting the minimum requirements and 
technicalspecifications contained in paragraph (b)(4) of this section. 
Unlesscompensation for varying flow is made, a constant flow system must 
beused to ensure a representative sample.
    (4) The NOX analytical system requires a 
continuouslyintegrated measurement of diluted NOX meeting the 
minimumrequirements and technical specifications contained in paragraph 
(b)(4) of this section. Unless compensation for varying flow is made, 
aconstant flow system must be used to ensure a representative sample.
    (5) Since various configurations can produce equivalent 
results,exact conformance with these drawings is not required. 
Additionalcomponents such as instruments, valves, solenoids, pumps, and 
switchesmay be used to provide additional information and coordinate 
thefunctions of the component systems. Other components, such 
assnubbers, which are not needed to maintain

[[Page 112]]

accuracy on somesystems, may be excluded if their exclusion is based 
upon goodengineering judgment.
    (6) Other sampling and/or analytical systems may be used if shownto 
yield equivalent results and if approved in advance by theAdministrator.
    (b) Component description. The components necessary forexhaust 
sampling shall meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS shallconform to all of the 
requirements listed for the exhaust gasPDP-CVS in 40 CFR part 1065. The 
CFV-CVS shall conformto all the requirements listed for the exhaust gas 
CFV-CVS in40 CFR part 1065. In addition, the CVS must conform to the 
followingrequirements:
    (i) The flow capacity of the CVS must be sufficient to maintainthe 
diluted exhaust stream at or below the temperature required forthe 
measurement of hydrocarbon emissions noted in the followingparagraph and 
to prevent condensation of water at any point in thedilution tunnel.
    (ii) The flow capacity of the CVS must be sufficient to maintainthe 
diluted exhaust stream in the primary dilution tunnel at atemperature of 
191 [deg]C or less at the sampling zone forhydrocarbon measurement and 
as required to prevent condensation at anypoint in the dilution tunnel. 
Gaseous emission samples may be takendirectly from this sampling point.
    (iii) For the CFV-CVS, either a heat exchanger or electronic 
flowcompensation is required (see Figure 3 in appendix A to this 
subpart).
    (iv) For the CFV-CVS when a heat exchanger is used, the gasmixture 
temperature, measured at a point immediately ahead of thecritical flow 
venturi, shall be within 11 [deg]C) of theaverage 
operating temperature observed during the test with thesimultaneous 
requirement that condensation does not occur. Thetemperature measuring 
system (sensors and readout) shall have anaccuracy and precision of 
2 [deg]C. For systems utilizing aflow compensator 
to maintain proportional flow, the requirement formaintaining constant 
temperature is not necessary.
    (v) The primary dilution air shall have a temperature of 25[deg]C 
5 [deg]C.
    (2) Continuous HC measurement system. (i) The continuous HCsample 
system (as shown in Figure 2 or 3 in appendix A to thissubpart) uses an 
``overflow'' zero and span system. Inthis type of system, excess zero or 
span gas spills out of the probewhen zero and span checks of the 
analyzer are made. The``overflow'' system may also be used to calibrate 
the HCanalyzer according to 40 CFR part 1065, subpart F, although this 
isnot required.
    (ii) No other analyzers may draw a sample from the continuous 
HCsample probe, line or system, unless a common sample pump is used 
forall analyzers and the sample line system design reflects 
goodengineering practice.
    (iii) The overflow gas flow rates into the sample line shall be 
atleast 105 percent of the sample system flow rate.
    (iv) The overflow gases shall enter the heated sample line asclose 
as practical to the outside surface of the CVS duct or dilutiontunnel.
    (v) The continuous HC sampling system shall consist of a probe(which 
must raise the sample to the specified temperature) and, whereused, a 
sample transfer system (which must maintain the specifiedtemperature). 
The continuous hydrocarbon sampling system (exclusive ofthe probe) 
shall:
    (A) Maintain a wall temperature of 191 [deg]C 11 [deg]Cas measured at every separately controlled 
heated component (that is,filters, heated line sections), using 
permanent thermocouples locatedat each of the separate components.
    (B) Have a wall temperature of 191 [deg]C 11 
[deg]Cover its entire length. The temperature of the system shall 
bedemonstrated by profiling the thermal characteristics of the 
systemwhere possible at initial installation and after any major 
maintenanceperformed on the system. The profiling shall be accomplished 
using theinsertion thermocouple probing technique. The system 
temperature willbe monitored continuously during testing at the 
locations andtemperature described in 40 CFR 1065.145.

[[Page 113]]

    (C) Maintain a gas temperature of 191 [deg]C 11[deg]C immediately before the heated filter and HFID. 
These gastemperatures will be determined by a temperature sensor 
locatedimmediately upstream of each component.
    (vi) The continuous hydrocarbon sampling probe shall:
    (A) Be defined as the first 25 cm to 76 cm of the 
continuoushydrocarbon sampling system.
    (B) Have a 0.48 cm minimum inside diameter.
    (C) Be installed in the primary dilution tunnel at a point wherethe 
dilution air and exhaust are well mixed (that is, approximately 10tunnel 
diameters downstream of the point where the exhaust enters thedilution 
tunnel).
    (D) Be sufficiently distant (radially) from other probes and 
thetunnel wall so as to be free from the influence of any wakes 
oreddies.
    (E) Increase the gas stream temperature to 191 [deg]C 11[deg]C at the exit of the probe. The ability of the 
probe toaccomplish this shall be demonstrated using the insertion 
thermocoupletechnique at initial installation and after any major 
maintenance.Compliance with the temperature specification shall be 
demonstrated bycontinuously recording during each test the temperature 
of either thegas stream or the wall of the sample probe at its terminus.
    (vii) The response time of the continuous measurement system shallbe 
no greater than:
    (A) 1.5 seconds from an instantaneous step change at the 
portentrance to the analyzer to within 90 percent of the step change.
    (B) 20 seconds from an instantaneous step change at the entranceto 
the sample probe or overflow span gas port to within 90 percent ofthe 
step change. Analysis system response time shall be coordinatedwith CVS 
flow fluctuations and sampling time/test cycle offsets ifnecessary.
    (C) For the purpose of verification of response times, the 
stepchange shall be at least 60 percent of full-scale chart deflection.
    (3) Primary dilution tunnel. (i) The primary dilution tunnelshall 
be:
    (A) Small enough in diameter to cause turbulent flow (ReynoldsNumber 
greater than 4000) and of sufficient length to cause completemixing of 
the exhaust and dilution air;
    (B) At least 46 cm in diameter; (engines below 110 kW may use 
adilution tunnel that is 20 cm in diameter or larger)
    (C) Constructed of electrically conductive material which does 
notreact with the exhaust components; and
    (D) Electrically grounded.
    (ii) The temperature of the diluted exhaust stream inside of 
theprimary dilution tunnel shall be sufficient to prevent 
watercondensation.
    (iii) The engine exhaust shall be directed downstream at the 
pointwhere it is introduced into the primary dilution tunnel.
    (4) Continuously integrated NOX. CO, andCO2 
measurement systems. (i) The sample probe shall:
    (A) Be in the same plane as the continuous HC probe, but shall 
besufficiently distant (radially) from other probes and the tunnel 
wallso as to be free from the influences of any wakes or eddies.
    (B) Heated and insulated over the entire length, to prevent 
watercondensation, to a minimum temperature of 55 [deg]C. Sample 
gastemperature immediately before the first filter in the system shall 
beat least 55 [deg]C.
    (ii) The continuous NOX, CO, or CO2sampling 
and analysis system shall conform to the specifications of 40CFR 
1065.145 with the following exceptions and revisions:
    (A) The system components required to be heated by 40 CFR 
1065.145need only be heated to prevent water condensation, the 
minimumcomponent temperature shall be 55 [deg]C.
    (B) The system response shall meet the specifications in 40 CFRpart 
1065, subpart C.
    (C) Alternative NOX measurement techniques outlined in40 
CFR part 1065, subpart D, are not permitted for 
NOXmeasurement in this subpart.
    (D) All analytical gases must conform to the specifications ofSec. 
89.312.
    (E) Any range on a linear analyzer below 155 ppm must have and usea 
calibration curve conforming to Sec. 89.310.
    (iii) The chart deflections or voltage output of analyzers withnon-
linear

[[Page 114]]

calibration curves shall be converted to concentrationvalues by the 
calibration curve(s) specified in Sec. 89.313before flow correction (if 
used) and subsequent integration takesplace.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998, 
as amended at 70 FR 40445, July 13, 2005]



Sec. 89.420  Background sample.

    (a) Background samples are produced by continuously drawing asample 
of dilution air during the exhaust collection phase of eachtest cycle 
mode.
    (1) Individual background samples may be produced and analyzed 
foreach mode. Hence, a unique background value will be used for 
theemission calculations for each mode.
    (2) Alternatively, a single background sample may be produced 
bydrawing a sample during the collection phase of each of the test 
cyclemodes. Hence, a single cumulative background value will be used 
forthe emission calculations for each mode.
    (b) For analysis of the individual sample described in 
paragraph(a)(1) of this section, a single value representing the average 
chartdeflection over a 10-second stabilized period is stored. All 
readingstaken during the 10-second interval must be stable at the final 
valueto within 1 percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaustand 
background concentrations in the sample bag(s) with approximatelythe 
same flow rates and pressures used during calibration.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57018, Oct. 23, 1998]



Sec. 89.421  Exhaust gas analytical system; CVS bag sample.

    (a) Schematic drawings. Figure 4 in appendix A to thissubpart is a 
schematic drawing of the exhaust gas analytical systemused for analyzing 
CVS bag samples from compression- ignition engines.Since various 
configurations can produce accurate results, exactconformance with the 
drawing is not required. Additional componentssuch as instruments, 
valves, solenoids, pumps and switches may be usedto provide additional 
information and coordinate the functions of thecomponent systems. Other 
components such as snubbers, which are notneeded to maintain accuracy in 
some systems, may be excluded if theirexclusion is based upon good 
engineering judgment.
    (b) Major component description. The analytical system,Figure 4 in 
appendix A to this subpart, consists of a flame ionizationdetector (FID) 
(heated for petroleum-fueled compression-ignitionengines to 191 [deg]C 
6 [deg]C) for the measurement ofhydrocarbons, 
nondispersive infrared analyzers (NDIR) for themeasurement of carbon 
monoxide and carbon dioxide, and achemiluminescence detector (CLD) (or 
HCLD) for the measurement ofoxides of nitrogen. The exhaust gas 
analytical system shall conform tothe following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide presentin 
the sample be converted to nitric oxide before analysis. Othertypes of 
analyzers may be used if shown to yield equivalent resultsand if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free 
ofCO2 and water vapor interference, the use of 
theconditioning column may be deleted. (See 40 CFR part 1065, subpart 
D.)
    (3) A CO instrument will be considered to be essentially free 
ofCO2 and water vapor interference if its response to 
amixture of 3 percent CO2 in N2, which has been 
bubbledthrough water at room temperature, produces an equivalent CO 
response,as measured on the most sensitive CO range, which is less than 
1percent of full scale CO concentration on ranges above 300 ppm 
fullscale or less than 3 ppm on ranges below 300 ppm full scale. (See 
40CFR part 1065, subpart D.)
    (c) Alternate analytical systems. Alternate analysis systemsmeeting 
the specifications of 40 CFR part 1065, subpart A, may be usedfor the 
testing required under this subpart. Heated analyzers may beused in 
their heated configuration.
    (d) Other analyzers and equipment. Other types of analyzers 
andequipment may be used if shown to yield equivalent results and 
ifapproved in advance by the Administrator.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998, 
as amended at 70 FR 40446, July 13, 2005]

[[Page 115]]



Sec. 89.422  Dilute sampling procedures--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter andrestrictor 
valve.
    (1) The flowmeter calibration must be traceable to NISTmeasurements, 
and will serve as the reference value (NIST``true'' value) for the CVS 
calibration. (Note: In no caseshould an upstream screen or other 
restriction which can affect theflow be used ahead of the flowmeter 
unless calibrated throughout theflow range with such a device.)
    (2) The CVS calibration procedures are designed for use of 
a``metering venturi'' type flowmeter. Large radius or ASMEflow nozzles 
are considered equivalent if traceable to NISTmeasurements. Other 
measurement systems may be used if shown to beequivalent under the test 
conditions in this section and traceable toNIST measurements.
    (3) Measurements of the various flowmeter parameters are recordedand 
related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS areoutlined 
below. Other procedures yielding equivalent results may beused if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification 
ofthe entire system may be performed by injecting a known mass of 
gasinto the system and comparing the mass indicated by the system to 
thetrue mass injected. An indicated error does not necessarily mean 
thatthe calibration is wrong, since other factors can influence 
theaccuracy of the system (for example, analyzer calibration, leaks, 
orHC hangup). A verification procedure is found in paragraph (e) of 
thissection.
    (c) PDP-CVS calibration. (1) The following calibrationprocedure 
outlines the equipment, the test configuration, and thevarious 
parameters which must be measured to establish the flow rateof the PDP-
CVS pump.
    (i) All the parameters related to the pump are 
simultaneouslymeasured with the parameters related to a flowmeter which 
is connectedin series with the pump.
    (ii) The calculated flow rate, in

(cm\3\/s), (at pump inlet absolute pressure and temperature)can then be 
plotted versus a correlation function which is the valueof a specific 
combination of pump parameters.
    (iii) The linear equation which relates the pump flow and 
thecorrelation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, 
acalibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of 
theabsolute values of the pump and flowmeter parameters that relate 
theflow rate at each point. Two conditions must be maintained to 
assurethe accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained duringcalibration. 
(Flowmeters are sensitive to inlet temperatureoscillations; this can 
cause the data points to be scattered. Gradualchanges in temperature are 
acceptable as long as they occur over aperiod of several minutes.)
    (ii) All connections and ducting between the flowmeter and the 
CVSpump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these 
samepump parameters enables the user to calculate the flow rate from 
thecalibration equation.
    (4) Connect a system as shown in Figure 5 in appendix A to 
thissubpart. Although particular types of equipment are shown, 
otherconfigurations that yield equivalent results may be used if 
approvedin advance by the Administrator. For the system indicated, 
thefollowing measurements and accuracies are required:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
             Parameter                     Symbol               Units              Sensor-readout tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)...  PB                   kPa................  .34 kPa
Ambient temperature...............  TA                   [deg]C.............  .3[deg]C
Air temperature into                ETI                  [deg]C.............  1.1 [deg]C
 meteringventuri.

[[Page 116]]

 
Pressure drop between the inlet     EDP                  kPa................  .01 kPa
 and throat of meteringventuri.
Air flow..........................  QS                   m\3\/min...........  .5% of
                                                                               NISTvalue.
Air temperature at CVS pumpinlet..  PTI                  [deg]C.............  1.1 [deg]C
Pressure depression at CVS          PPI                  kPa................  .055 kPa
 pumpinlet.
Pressure head at CVS pump outlet..  PPO                  kPa................  .055kPa
Air temperature at CVS pump outlet  PTO                  [deg]C.............  1.1 [deg]C
 (optional).
Pump revolutions during test        N                    Revs...............  1Rev.
 period.
Elapsed time for test period......  t                    s..................  .5 s.
----------------------------------------------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 
inappendix A to this subpart, set the variable restrictor in the 
wideopen position and run the CVS pump for 20 minutes. Record 
thecalibration data.
    (6) Reset the restrictor valve to a more restricted condition inan 
increment of pump inlet depression that will yield a minimum of sixdata 
points for the total calibration. Allow the system to stabilizefor 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point 
iscalculated in standard cubic meters per minute (0 [deg]C, 101.3 
kPa)from the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow,Vo, 
in cubic meter per revolution at absolute pumpinlet temperature and 
pressure:
[GRAPHIC] [TIFF OMITTED] TR17JN94.020

Where:

Vo = Pump flow, (m\3\/rev) atTp, Pp.
Qs = Meter air flow rate in standard cubicmeters per minute, 
standard conditions are 0 [deg]C, 101.3 kPa.
n=Pump speed in revolutions per minute.
Tp=Pump inlet temperature [deg]K=Pti+273 [deg]K, 
Pti=Pump inlettemp [deg]C
Pp=Absolute pump inlet pressure, (kPa)
    = PB - PPI
Where:

PB=barometric pressure, (kPa).
PPI=Pump inlet depression, (kPa).

    (iii) The correlation function at each test point is thencalculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR17JN94.021

Xo = correlation function.
[Delta]p = The pressure differential from pump inlet to pumpoutlet, 
(kPa).
    = Pe-Pp.
Pe = Absolute pump outlet pressure, (kPa)
    = PB+PPO
Where:

PPO=Pressure head at pump outlet, (kPa).

    (iv) A linear least squares fit is performed to generate 
thecalibration equation which has the form:

Vo=Do-M(Xo)

Do and M are the intercept and slopeconstants, respectively, 
describing the regression line.

    (8) A CVS system that has multiple speeds must be calibrated oneach 
speed used. The calibration curves generated for the ranges willbe 
approximately parallel and the intercept values,Do, will 
increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, thecalculated 
values from the equation will be within 0.50percent of the measured value of Vo. 
Values ofM will vary from one pump to another, but values 
ofDo for pumps of the same make, model, and rangeshould agree 
within 3 percent of each other. Calibrationsshould 
be performed at pump start-up and after major maintenance toassure the 
stability of the pump slip rate. Analysis of mass injectiondata will 
also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is basedupon the 
flow equation for a critical venturi. Gas flow is a functionof inlet 
pressure and temperature:

[[Page 117]]

[GRAPHIC] [TIFF OMITTED] TR17JN94.022

Where:

Qs = flow.
Kv = calibration coefficient.
P = absolute pressure.
T = absolute temperature.


The calibration procedure described in paragraph (d)(3) ofthis section 
establishes the value of the calibration coefficient atmeasured values 
of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure shall be followed 
forcalibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
             Parameter                        Symbol                   Units                  Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)....  PB                       kPa (Inches Hg).......  0.034 (0.01).
Air temperature, flowmeter.........  ETI                      deg.C (deg.F).........  0.14 (0.25).
Pressure depression upstream of LFE  EPI                      kPa(InchesH2O)........  0.012 (0.05).
Pressure drop across LFE matrix....  EDP                      kPa (Inches H2O)......  0.001 (0.005).
Air flow...........................  Qs                       m\3\/min. (Ft\3\/min).  0.5 pct.
CFV inlet depression...............  PPI                      kPa (Inches Hg).......  0.055 (0.016).
CFV outlet pressure................  PPO                      kPa (Inches Hg).......  0.17 (0.05).
Temperature at venturi inlet.......  Tv                       deg.C (deg.F).........  0.28(0.5)
Specific gravity of manometer fluid  Sp.Gr                    ......................  (1.75 oil).
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in appendix A to 
subpartand eliminate leaks. (Leaks between the flow measuring devices 
and thecritical flow venturi will seriously affect the accuracy of 
thecalibration.)
    (5) Set the variable flow restrictor to the open position, startthe 
blower, and allow the system to stabilize. Record data from 
allinstruments.
    (6) Vary the flow restrictor and make at least eight readingsacross 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibrationare to be 
used in the following calculations:
    (i) The air flow rate (designated as Qs) at eachtest point is 
calculated in standard cubic feet per minute from theflow meter data 
using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each 
testpoint:
[GRAPHIC] [TIFF OMITTED] TR17JN94.023

Where:

Qs = Flow rate in standard cubic meter perminute, at the standard 
conditions of 0 [deg]C, 101.3 kPa.
Tv = Temperature at venturi inlet, [deg]K.
Pv = PB - PPI (= Pressure at venturi inlet, kPA)
Where:

PPI = Venturi inlet pressure depression, (kPa).

    (iii) Plot Kv as a function of venturi inletpressure. For choked 
flow, Kv will have a relativelyconstant value. As pressure decreases 
(vacuum increases), the venturibecomes unchoked and Kv decreases. (See 
Figure 7 inappendix A to this subpart.)
    (iv) For a minimum of eight points in the critical regioncalculate 
an average Kv and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the averageKv, 
take corrective action.
    (e) CVS system verification. The following``gravimetric'' technique 
can be used to verify that theCVS and analytical instruments can 
accurately measure a mass of gasthat has been injected into the system. 
(Verification can also beaccomplished by constant flow metering using 
critical flow orificedevices.)
    (1) Obtain a small cylinder that has been charged with 99.5percent 
or greater propane or carbon monoxide gas(Caution--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01grams.
    (3) Operate the CVS in the normal manner and release a quantity 
ofpure propane into the system during the sampling period 
(approximately5 minutes).

[[Page 118]]

    (4) The calculations are performed in the normal way exceptin the 
case of propane. The density of propane (0.6109 kg/m\3\/carbonatom)) is 
used in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured massand 
then divided by the gravimetric mass to determine the percentaccuracy of 
the system.
    (6) Good engineering practice requires that the cause for 
anydiscrepancy greater than 2 percent must be 
found andcorrected.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57018, Oct. 23, 1998]



Sec. 89.423  [Reserved]



Sec. 89.424  Dilute emission sampling calculations.

    (a) The final reported emission test results are computed by useof 
the following formula:
[GRAPHIC] [TIFF OMITTED] TR23OC98.018

Where:
Awm = Weighted mass emission level (HC, CO,CO2, 
PM, or NOX) in g/kW-hr.
gi = Mass flow in grams per hour, = grams measuredduring the 
mode divided by the sample time for the mode.
WFi = Effective weighing factor.
Pi = Power measured during each mode (Power set = zerofor the 
idle mode).
    (b) The mass of each pollutant for each mode for bag measurementsand 
diesel heat exchanger system measurements is determined from 
thefollowing equations:
    (1) Hydrocarbon mass:

HCmass= Vmix xDensityHC x 
    (HCconc/10\6\)

    (2) Oxides of nitrogen mass:

NOXmass = Vmix xDensityNO2 x KH 
    x(NOXconc/10\6\)

    (3) Carbon monoxide mass:

COmass= VmixxDensityCOx 
    (COconc/10\6\)

    (4) Carbon dioxide mass:

CO2mass= VmixxDensityCO2 x 
    (CO2conc/102)

    (c) The mass of each pollutant for the mode for flow 
compensatedsample systems is determined from the following equations:
[GRAPHIC] [TIFF OMITTED] TR17JN94.025


[[Page 119]]


[GRAPHIC] [TIFF OMITTED] TR17JN94.026

    (d) Meaning of symbols:
    (1) For hydrocarbon equations:

HCmass= Hydrocarbon emissions, in grams per testmode.
DensityHC= Density of hydrocarbons is (.5800kg/m\3\) for 
1 diesel, and (0.5746 kg/m\3\) for 2 diesel,assuming 
an average carbon to hydrogen ratio of 1:1.93 for 1diesel, and 
1:1.80 for 2 diesel at 20 [deg]C and 101.3 kPapressure.
HCconc= Hydrocarbon concentration of the diluteexhaust sample 
corrected for background, in ppm carbon equivalent(that is, equivalent 
propane times 3).
[GRAPHIC] [TIFF OMITTED] TR17JN94.027

Where:

HCe= Hydrocarbon concentration of the diluteexhaust bag 
sample or, for diesel heat exchanger systems, averagehydrocarbon 
concentration of the dilute exhaust sample as calculatedfrom the 
integrated HC traces, in ppm carbon equivalent. For flowcompensated 
sample systems (HCe)i is theinstantaneous 
concentration.
HCd= Hydrocarbon concentration of the dilutionair as 
measured, in ppm carbon equivalent.

    (2) For oxides of nitrogen equations:

NOXmass = Oxides of nitrogen emissions, in gramsper test 
mode.
Density NO2= Density of oxides of nitrogen is1.913 kg/m\3\, 
assuming they are in the form of nitrogen dioxide, at20 [deg]C and 101.3 
kPa pressure.
NOXconc= Oxides of nitrogen concentration of thedilute 
exhaust sample corrected for background, in ppm:
[GRAPHIC] [TIFF OMITTED] TR17JN94.028

Where:

NOX.= Oxides of nitrogen concentration of thedilute exhaust 
bag sample as measured, in ppm. For flow compensatedsample systems 
(NOX.)i is theinstantaneous concentration.
NOX.= Oxides of nitrogen concentration of thedilute air as 
measured, in ppm.

    (3) For carbon monoxide equations:

COmass=Carbon monoxide emissions, grams per testmode. 
    DensityCO=Density of carbon monoxide (1.164 kg/m\3\at 20 
    [deg]C and 101.3 kPa pressure).
COconc=Carbon monoxide concentration of thedilute exhaust 
    sample corrected for background, water vapor, andCO2 
    extraction, ppm.
    [GRAPHIC] [TIFF OMITTED] TR17JN94.029
    
Where:

COe=Carbon monoxide concentration of the diluteexhaust bag 
sample volume corrected for water vapor and carbon dioxideextraction, 
ppm. For flow compensated

[[Page 120]]

sample systems,(COe)i is the 
instantaneousconcentration.

    The following calculation assumes the carbon to hydrogen ratio ofthe 
fuel is 1:1.85. As an option the measured actual carbon tohydrogen ratio 
may be used:

COe=[1-0.01925CO2.-0.000323R]COem

Where:

COem=Carbon monoxide concentration of the diluteexhaust 
sample as measured, ppm.
CO2.=Carbon dioxide concentration of the diluteexhaust bag 
sample, in percent, if measured. For flow compensatedsample systems, 
(CO2.)i is theinstantaneous concentration. For 
cases where exhaust sampling ofCO2 is not performed, the 
following approximation ispermitted:
[GRAPHIC] [TIFF OMITTED] TR17JN94.030

\a\=Average carbon to hydrogen ratio.
    M \1\ = Fuel mass consumed during the mode.
R=Relative humidity of the dilution air, percent.
COd=Carbon monoxide concentration of thedilution air 
corrected for water vapor extraction, ppm.
COd=(1-0.000323R)COdm
Where:

COdm=Carbon monoxide concentration of thedilution air sample 
as measured, ppm.

    (Note: If a CO instrument that meets the criteria specified in 40CFR 
part 1065, subpart C, is used without a sample dryer according to40 CFR 
1065.145, COem must be substituted directly forCOe 
and COdm must be substituted directly forCOd.)

    (4) For carbon dioxide equation:

CO2mass=Carbon dioxide emissions, in grams pertest mode.
Density CO2=Density of carbon dioxide is 1.830kg/m\3\, at 20 
[deg]C and 760 mm Hg pressure.
CO2conc=Carbon dioxide concentration of thedilute exhaust 
sample corrected for background, in percent.
[GRAPHIC] [TIFF OMITTED] TR17JN94.031

Where:

CO2.=Carbon dioxide concentration of thedilution air as 
measured, in percent.
[GRAPHIC] [TIFF OMITTED] TR17JN94.032

    (6) Measured ``dry'' concentrations shall be correctedto a wet 
basis, if not already measured on a wet basis. This sectionis applicable 
only for measurements made on dilute exhaust gas.Correction to a wet 
basis shall be according to the following formula:

ConcWET = KW x ConcDRY
    Where: KW is determined according to the equation 
inparagraph (d)(6)(i) or (d)(6)(ii), of this section.

    (i) For wet CO2 measurement:
    [GRAPHIC] [TIFF OMITTED] TR23OC98.019
    
    (ii) For dry CO2 measurement:

[[Page 121]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.020

    (iii) For the equations in paragraph (d)(6)(i) and (d)(6)(ii) ofthis 
section, the following equation applies:
[GRAPHIC] [TIFF OMITTED] TR23OC98.021

    Where: Ha and Hd are the grams of waterper 
kilogram of dry air; as illustrated in the following equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.022

[GRAPHIC] [TIFF OMITTED] TR23OC98.023

    (e) The final modal reported brake-specific fuel consumption(bsfc) 
shall be computed by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR23OC98.024

Where:

bsfc = brake-specific fuel consumption for a mode in grams of fuelper 
kilowatt-hour (kW-hr).
M = mass of fuel in grams, used by the engine during a mode.
kW-hr = total kilowatts integrated with respect to time for amode.

    (f) The mass of fuel for the mode is determined from mass fuelflow 
measurements made during the mode, or from the followingequation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.034

Where:

M=Mass of fuel, in grams, used by the engine during themode.
Gs=Grams of carbon measured during the mode:

[[Page 122]]

[GRAPHIC] [TIFF OMITTED] TR17JN94.035

R2=Grams C in fuel per gram of fuel

Where:

HCmass=hydrocarbon emissions, in grams for themode
CO2mass=carbon monoxide emissions, in grams forthe mode
CO2mass=carbon dioxide emissions, in grams forthe mode
[alpha]=The atomic hydrogen to carbon ratio of the fuel.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57018, Oct. 23, 1998; 70 FR 40446, July 13, 2005]



Sec. 89.425  [Reserved]

[[Page 123]]



             Sec. Appendix A to Subpart E of Part89--Figures

[GRAPHIC] [TIFF OMITTED] TC01MR92.002


[[Page 124]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.003


[[Page 125]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.004


[[Page 126]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.005


[[Page 127]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.006


[[Page 128]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.007


[[Page 129]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.008



             Sec. Appendix B to Subpart E of Part89--Tables

                              Table 1--8-Mode Test Cycle forVariable-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                            Observed      Minimum
                                                                           torque \2\     time in     Weighting
          Test segment               Mode number       Enginespeed \1\    (percent of       mode       factors
                                                                         max.observed)   (minutes)
----------------------------------------------------------------------------------------------------------------
1..............................  1.................  Rated.............           100           5.0         0.15
1..............................  2.................  Rated.............            75           5.0         0.15
1..............................  3.................  Rated.............            50           5.0         0.15
1..............................  4.................  Rated.............            10           5.0         0.10
2..............................  5.................  Int...............           100           5.0         0.10
2..............................  6.................  Int...............            75           5.0         0.10
2..............................  7.................  Int...............            50           5.0         0.10
2..............................  8.................  Idle..............             0           5.0         0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed (non-idle):  2 percent ofpoint. Engine speed (idle): Within
  manufacturer's specifications. Idlespeed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for 100 percentpoints. Other non-idle points: 
  2 percent of enginemaximum value. Torque (idle): Throttle fully closed. Load less than 5percent of peak
  torque.


                              Table 2--5-Mode Test Cycle forConstant-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                      Observedtorque
                                                                       \2\ (percent    Minimum time   Weighting
               Mode number                      Engine\1\ Speed           of max.           in         factors
                                                                         observed)    mode(minutes)
----------------------------------------------------------------------------------------------------------------
1.......................................  Rated.....................            100            5.0          0.05
2.......................................  Rated.....................             75            5.0          0.25
3.......................................  Rated.....................             50            5.0          0.30

[[Page 130]]

 
4.......................................  Rated.....................             25            5.0          0.30
5.......................................  Rated.....................             10            5.0          0.10
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Torque: Throttle fully open for 100 percent point. Otherpoints:  2 percent of engine
  maximum value.


                             Table 3--6-Mode Test Cycle forEngines Rated Under 19 kW
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\  Minimumtime
                Mode number                        Engine speed \1\        (percent of    in mode     Weighting
                                                                               max.      (minutes)     factors
                                                                            observed)
----------------------------------------------------------------------------------------------------------------
1.........................................  Rated........................          100          5.0         0.09
2.........................................  Rated........................           75          5.0         0.20
3.........................................  Rated........................           50          5.0         0.29
4.........................................  Rated........................           25          5.0         0.30
5.........................................  Rated........................           10          5.0         0.07
6.........................................  Idle.........................            0          5.0         0.05
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed (non-idle):  2 percent ofpoint. Engine speed (idle): Within
  manufacturer's specifications. Idlespeed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for operation at100 percent point. Other nonidle points:  2 percent ofengine maximum value. Torque (idle): Throttle fully closed. Load lessthan 5
  percent of peak torque.


                         Table 4--4-Mode Test Cycle forPropulsion Marine Diesel Engines
----------------------------------------------------------------------------------------------------------------
                                                    Enginespeed    Observedpower
                                                   \1\ (percent    \2\ (percent    Minimum time      Weighting
                   Mode number                        of max.         of max.           in            factors
                                                     observed)       observed)     mode(minutes)
----------------------------------------------------------------------------------------------------------------
1...............................................             100             100             5.0            0.20
2...............................................              91              75             5.0            0.50
3...............................................              80              50             5.0            0.15
4...............................................              63              25             5.0            0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed:  2 percent of point.
\2\ Power: Throttle fully open for operation at 100 percentpoint. Other points:  2 percent
  of engine maximumvalue.


[63 FR 57019, Oct. 23, 1998]



                Subpart F_Selective Enforcement Auditing



Sec. 89.501  Applicability.

    The requirements of subpart F are applicable to all nonroadengines 
subject to the provisions of subpart A of part 89.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.502  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentageof 
failing engines that can be considered a satisfactory processaverage for 
sampling inspections.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, injector size, engine calibration, andother parameters 
as designated by the Administrator.
    Inspection criteria means the pass and fail numbersassociated with a 
particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected fromthe 
population of an engine family for emission testing.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]

[[Page 131]]



Sec. 89.503  Test orders.

    (a) A test order addressed to the manufacturer is required for 
anytesting under this subpart.
    (b) The test order is signed by the Assistant Administrator forAir 
and Radiation or his or her designee. The test order must bedelivered in 
person by an EPA enforcement officer or EPA authorizedrepresentative to 
a company representative or sent by registered mail,return receipt 
requested, to the manufacturer's representative whosigned the 
application for certification submitted by themanufacturer, pursuant to 
the requirements of the applicable sectionof subpart B of this part. 
Upon receipt of a test order, themanufacturer must comply with all of 
the provisions of this subpartand instructions in the test order.
    (c) Information included in test order. (1) The test orderwill 
specify the engine family to be selected for testing, themanufacturer's 
engine assembly plant or associated storage facility orport facility 
(for imported engines) from which the engines must beselected, the time 
and location at which engines must be selected, andthe procedure by 
which engines of the specified family must beselected. The test order 
may specify the configuration to be auditedand/or the number of engines 
to be selected per day. Enginemanufacturers are required to select a 
minimum of four engines per dayunless an alternate selection procedure 
is approved pursuant toSec. 89.507(a), or unless total production of 
the specifiedconfiguration is less than four engines per day. If total 
productionof the specified configuration is less than four engines per 
day, themanufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selectedfor 
testing at the Administrator's discretion in the event thatengines of 
the specified family are not available for testing becausethose engines 
are not being manufactured during the specified time orare not being 
stored at the specified assembly plant, associatedstorage facilities, or 
port of entry.
    (3) If the specified family is not being manufactured at a rate ofat 
least two engines per day in the case of manufacturers specified inSec. 
89.508(g)(1), or one engine per day in the case ofmanufacturers 
specified in Sec. 89.508(g)(2), over theexpected duration of the audit, 
the Assistant Administrator or her orhis designated representative may 
select engines of the alternatefamily for testing.
    (4) In addition, the test order may include other directions 
orinformation essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and 
thecorresponding assembly plants, associated storage facilities, or 
(inthe case of imported engines) port facilities from which 
themanufacturer prefers to have engines selected for testing in 
responseto a test order. In order that a manufacturer's preferred 
location beconsidered for inclusion in a test order for a particular 
enginefamily, the list must be submitted prior to issuance of the 
testorder. Notwithstanding the fact that a manufacturer has submitted 
thelist, the Administrator may order selection at other than a 
preferredlocation.
    (e) Upon receipt of a test order, a manufacturer must proceed 
inaccordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator may not issueto 
a manufacturer more Selective Enforcement Auditing (SEA) testorders than 
an annual limit determined to be the larger of thefollowing factors:
    (i) Production factor, determined by dividing the projectednonroad 
engine sales in the United States for that model year, asdeclared by the 
manufacturer under Sec. 89.505(c)(1), by16,000 and rounding to the 
nearest whole number. If the projectedsales are less than 8,000, this 
factor is one.
    (ii) Family factor, determined by dividing the manufacturer'stotal 
number of certified engine families by five and rounding to thenearest 
whole number.
    (2) If a manufacturer submits to EPA in writing prior to or 
duringthe model year a reliable sales projection update or adds 
enginefamilies or deletes engine families from its production, 
thatinformation is used for recalculating

[[Page 132]]

the manufacturer's annuallimit of SEA test orders.
    (3) Any SEA test order for which the family fails underSec. 89.510 
or for which testing is not completed is notcounted against the annual 
limit.
    (4) When the annual limit has been met, the Administrator mayissue 
additional test orders to test those families for which evidenceexists 
indicating noncompliance. An SEA test order issued on thisbasis will 
include a statement as to the reason for its issuance.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.504  Testing by the Administrator.

    (a) The Administrator may require by test order underSec. 89.503 
that engines of a specified family be selectedin a manner consistent 
with the requirements of Sec. 89.507and submitted to the Administrator 
at the place designated for thepurpose of conducting emission tests. 
These tests will be conducted inaccordance with Sec. 89.508 to 
determine whether enginesmanufactured by the manufacturer conform with 
the regulations withrespect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever theAdministrator 
conducts a test on a test engine or the Administratorand manufacturer 
each conduct a test on the same test engine, theresults of the 
Administrator's test comprise the official data forthat engine.
    (2) Whenever the manufacturer conducts all tests on a test 
engine,the manufacturer's test data is accepted as the official 
data,provided that if the Administrator makes a determination based 
ontesting conducted under paragraph (a) of this section that there is 
asubstantial lack of agreement between the manufacturer's test 
resultsand the Administrator's test results, no manufacturer's test data 
fromthe manufacturer's test facility will be accepted for purposes of 
thissubpart.
    (c) If testing conducted under Sec. 89.503 isunacceptable under 
paragraph (b)(2) of this section, the Administratormust:
    (1) Notify the manufacturer in writing of the 
Administrator'sdetermination that the test facility is inappropriate for 
conductingthe tests required by this subpart and the reasons therefor; 
and
    (2) Reinstate any manufacturer's data upon a showing by 
themanufacturer that the data acquired under Sec. 89.503 waserroneous 
and the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the 
Administratorreconsider the determination in paragraph (b)(2) of this 
section basedon data or information which indicates that changes have 
been made tothe test facility and these changes have resolved the 
reasons fordisqualification.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.505  Maintenance of records; submittal of information.

    (a) The manufacturer of any new nonroad engine subject to any ofthe 
provisions of this subpart must establish, maintain, and retainthe 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used totest 
engines in accordance with Sec. 89.508 pursuant to atest order issued 
under this subpart, specifically, the equipmentrequirements specified in 
Sec. Sec. 86.884-8 and86.884-9 of this chapter and the equipment 
requirementsspecified in Sec. Sec. 89.306, 89.308, 89.309, and 89.312.
    (2) Individual records. These records pertain to each auditconducted 
pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the engine 
whenthe test began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the audit;
    (iv) A record and description of any repairs performed prior toand/
or subsequent to approval by the Administrator, giving the 
date,associated time, justification, name(s) of the authorizing 
personnel,and names of all supervisory personnel responsible for the 
conduct ofthe repair;
    (v) The date the engine was shipped from the assembly 
plant,associated storage facility or port facility, and date the engine 
wasreceived at the testing facility;

[[Page 133]]

    (vi) A complete record of all emission tests performedpursuant to 
this subpart (except tests performed directly by EPA),including all 
individual worksheets and/or other documentationrelating to each test, 
or exact copies thereof, to be in accordancewith the record requirements 
specified in Sec. 89.404 orSec. 86.884-10 of this chapter.
    (vii) A brief description of any significant audit events 
notdescribed under paragraph (a)(2) of this section, commencing with 
thetest engine selection process and including such extraordinary 
eventsas engine damage during shipment.
    (3) The manufacturer must record test equipment description,pursuant 
to paragraph (a)(1) of this section, for each test cell thatcan be used 
to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to 
bemaintained under this subpart for a period of one year aftercompletion 
of all testing in response to a test order. Records may beretained as 
hard copy or reduced to microfilm, floppy disc, and soforth, depending 
upon the manufacturer's record retention procedure;provided, that in 
every case, all the information contained in thehard copy is retained.
    (c) The manufacturer must, upon request by the Administrator,submit 
the following information with regard to engine production:
    (1) Projected production for each engine configuration within 
eachengine family for which certification is requested;
    (2) Number of engines, by configuration and assembly plant,scheduled 
for production for the time period designated in therequest;
    (3) Number of engines, by configuration and by assembly 
plant,storage facility or port facility, scheduled to be stored 
atfacilities for the time period designated in the request; and
    (4) Number of engines, by configuration and assembly plant,produced 
during the time period designated in the request that arecomplete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (e) All reports, submissions, notifications, and requests 
forapprovals made under this subpart are addressed to: Director, 
EnginePrograms and Compliance Division (6405-J), U.S. 
EnvironmentalProtection Agency, 1200 Pennsylvania Ave., NW., Washington, 
DC 20460.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57020, Oct. 23, 1998]



Sec. 89.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions of this subpart and a test orderissued 
thereunder, EPA enforcement officers or EPA authorizedrepresentatives 
may enter during operating hours and upon presentationof credentials any 
of the following places:
    (1) Any facility where any engine to be introduced into 
commerce,including ports of entry, or any emission-related component 
ismanufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a testorder 
or any procedures or activities connected with these tests areor were 
performed;
    (3) Any facility where any engine which is being tested, wastested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating toany 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers or EPA 
authorizedrepresentatives are authorized to perform the following 
inspection-related activities:
    (1) To inspect and monitor any aspects of engine 
manufacture,assembly, storage, testing and other procedures, and the 
facilities inwhich these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures 
oractivities, including, but not limited to, engine 
selection,preparation, service accumulation, emission test cycles, 
andmaintenance and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection, and testing

[[Page 134]]

of an engine incompliance with a test order; and
    (4) To inspect and photograph any part or aspect of any engine 
andany component used in the assembly thereof that is reasonably 
relatedto the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives 
areauthorized to obtain reasonable assistance without cost from those 
incharge of a facility to help the officers perform any function 
listedin this subpart and they are authorized to request the recipient 
of atest order to make arrangements with those in charge of a 
facilityoperated for the manufacturer's benefit to furnish 
reasonableassistance without cost to EPA whether or not the recipient 
controlsthe facility.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
an EPA enforcement officer's or EPA authorizedrepresentative's request 
of personnel of the facility being inspectedduring their working hours 
to inform the EPA enforcement officer orEPA authorized representative of 
how the facility operates and toanswer the officer's or representative's 
questions; and theperformance on request of emission tests on any engine 
which is being,has been, or will be used for SEA testing.
    (2) A manufacturer may be compelled to cause the personalappearance 
of any employee at such a facility before an EPAenforcement officer or 
EPA authorized representative by writtenrequest for his appearance, 
signed by the Assistant Administrator forAir and Radiation, served on 
the manufacturer. Any such employee whohas been instructed by the 
manufacturer to appear will be entitled tobe accompanied, represented, 
and advised by counsel.
    (d) EPA enforcement officers or EPA authorized representatives 
areauthorized to seek a warrant or court order authorizing the 
EPAenforcement officers or EPA authorized representatives to 
conductactivities related to entry and access as authorized in this 
section,as appropriate, to execute the functions specified in this 
section.EPA enforcement officers or authorized representatives may 
proceed exparte to obtain a warrant whether or not the EPA enforcement 
officersor EPA authorized representatives first attempted to seek 
permissionof the recipient of the test order or the party in charge of 
thefacilities in question to conduct activities related to entry 
andaccess as authorized in this section.
    (e) A recipient of a test order must permit an EPA 
enforcementofficer(s) or EPA authorized representative(s) who presents a 
warrantor court order to conduct activities related to entry and access 
asauthorized in this section and as described in the warrant or 
courtorder. The recipient must also cause those in charge of its 
facilityor a facility operated for its benefit to permit entry and 
access asauthorized in this section pursuant to a warrant or court 
orderwhether or not the recipient controls the facility. In the absence 
ofa warrant or court order, an EPA enforcement officer(s) or 
EPAauthorized representative(s) may conduct activities related to 
entryand access as authorized in this section only upon the consent of 
therecipient of the test order or the party in charge of the 
facilitiesin question.
    (f) It is not a violation of this part or the Clean Air Act forany 
person to refuse to permit an EPA enforcement officer(s) or 
EPAauthorized representative(s) to conduct activities related to 
entryand access as authorized in this section if the officer(s) 
orrepresentative(s) appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign 
testingand manufacturing facilities in jurisdictions where local law 
does notprohibit an EPA enforcement officer(s) or EPA 
authorizedrepresentative(s) from conducting the entry and access 
activitiesspecified in this section. EPA will not attempt to make 
anyinspections which it has been informed that local foreign 
lawprohibits.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57020, Oct. 23, 1998]



Sec. 89.507  Sample selection.

    (a) Engines comprising a test sample will be selected at thelocation 
and in the manner specified in the test order. If amanufacturer 
determines that the test engines cannot be selected inthe manner 
specified in the test order, an

[[Page 135]]

alternative selectionprocedure may be employed, provided the 
manufacturer requests approvalof the alternative procedure prior to the 
start of test sampleselection, and the Administrator approves the 
procedure.
    (b) The manufacturer must assemble the test engines of the 
familyselected for testing using its normal mass production process 
forengines to be distributed into commerce. If, between the time 
themanufacturer is notified of a test order and the time the 
manufacturerfinishes selecting test engines, the manufacturer implements 
anychange(s) in its production processes, including quality 
control,which may reasonably be expected to affect the emissions of 
theengines selected, then the manufacturer must, during the audit, 
informthe Administrator of such changes. If the test engines are 
selected ata location where they do not have their operational and 
emissioncontrol systems installed, the test order will specify the 
manner andlocation for selection of components to complete assembly of 
theengines. The manufacturer must assemble these components onto the 
testengines using normal assembly and quality control procedures 
asdocumented by the manufacturer.
    (c) No quality control, testing, or assembly procedures will beused 
on the test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
unlessthe Administrator approves the modification in assembly 
procedurespursuant to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s)or 
authorized representative(s), rather than the manufacturer, selectthe 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines theorder 
in which test results are to be used in applying the samplingplan in 
accordance with Sec. 89.510.
    (f) The manufacturer must keep on hand all untested engines, ifany, 
comprising the test sample until a pass or fail decision isreached in 
accordance with Sec. 89.510(e). The manufacturermay ship any tested 
engine which has not failed the requirements asset forth in Sec. 
89.510(b). However, once the manufacturerships any test engine, it 
relinquishes the prerogative to conductretests as provided in Sec. 
89.508(i).

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.508  Test procedures.

    (a)(1) For nonroad engines subject to the provisions of thissubpart, 
the prescribed test procedures are the nonroad engine 8-modetest 
procedure as described in subpart E of this part, the federalsmoke test 
as described in part 86, subpart I of this chapter, and theparticulate 
test procedure as adopted in the California Regulationsfor New 1996 and 
Later Heavy-Duty Off-Road Diesel Cycle Engines. Thisprocedure is 
incorporated by reference. See Sec. 89.6.
    (2) The Administrator may, on the basis of a written applicationby a 
manufacturer, prescribe test procedures other than thosespecified in 
paragraph (a)(1) of this section for any nonroad enginehe or she 
determines is not susceptible to satisfactory testing usingthe 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or 
modifythe engines selected for testing and may not perform any 
emissiontests on engines selected for testing pursuant to the test 
orderunless this adjustment, repair, preparation, modification, and/
ortests are documented in the manufacturer's engine assembly 
andinspection procedures and are actually performed or unless 
theseadjustments and/or tests are required or permitted under this 
subpartor are approved in advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification and Selective Enforcement Audittesting in 
accordance with Sec. 89.108, to any settingwithin the physically 
adjustable range of that parameter, asdetermined by the Administrator in 
accordance withSec. 89.108, prior to the performance of any tests. 
However,if the idle speed parameter is one which the Administrator 
hasdetermined to be subject to adjustment, the

[[Page 136]]

Administrator may notadjust it to any setting which causes a lower 
engine idle speed thanwould have been possible within the physically 
adjustable range of theidle speed parameter if the manufacturer had 
accumulated 125 hours ofservice on the engine under paragraph (c) of 
this section, all otherparameters being identically adjusted for the 
purpose of thecomparison. The manufacturer may be requested to supply 
informationneeded to establish an alternate minimum idle speed. 
TheAdministrator, in making or specifying these adjustments, may 
considerthe effect of the deviation from the manufacturer's 
recommendedsetting on emission performance characteristics as well as 
thelikelihood that similar settings will occur on in-use engines. 
Indetermining likelihood, the Administrator may consider factors suchas, 
but not limited to, the effect of the adjustment on engineperformance 
characteristics and surveillance information from similarin-use engines.
    (c) Service Accumulation. Prior to performing exhaustemission 
testing on an SEA test engine, the manufacturer mayaccumulate on each 
engine a number of hours of service equal to thegreater of 125 hours or 
the number of hours the manufactureraccumulated during certification on 
the emission data enginecorresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using 
goodengineering judgment to obtain emission results representative 
ofnormal production engines. This service accumulation must beconsistent 
with the new engine break-in instructions contained in theapplicable 
owner's manual.
    (2) The manufacturer must accumulate service at a minimum rate of16 
hours per engine during each 24-hour period, unless otherwiseapproved by 
the Administrator.
    (i) The first 24-hour period for service begins as soon asauthorized 
checks, inspections, and preparations are completed on eachengine.
    (ii) The minimum service or mileage accumulation rate does notapply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than 
theminimum rate specified (16 hours per day), then the minimum 
dailyaccumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient numberof 
test engines during consecutive 24-hour periods to assure that thenumber 
of engines tested per day fulfills the requirements ofparagraphs (g)(1) 
and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on testengines 
after selection for testing, nor may the Administrator allowdeletion of 
any engine from the test sequence, unless requested by themanufacturer 
and approved by the Administrator before any enginemaintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from 
thepoint of selection to the test facility. If the test facility is 
notlocated at or in close proximity to the point of selection, 
themanufacturer must assure that test engines arrive at the test 
facilitywithin 24 hours of selection. The Administrator may approve more 
timefor shipment based upon a request by the manufacturer accompanied by 
asatisfactory justification.
    (f) If an engine cannot complete the service accumulation or 
anemission test because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a testorder 
issued under this subpart, the manufacturer must notify theAdministrator 
within one working day of receipt of the test order asto which test 
facility will be used to comply with the test order. Ifno test cells are 
available at a desired facility, the manufacturermust provide alternate 
testing capability satisfactory to theAdministrator.
    (1) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year of 7,500 or greater mustcomplete 
emission testing at a minimum rate of two engines per 24-hourperiod, 
including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year

[[Page 137]]

of less than 7,500must complete emission testing at a minimum rate of 
one engine per 24-hour period, including each voided test and each smoke 
test.
    (3) The Administrator may approve a lower daily rate of 
emissiontesting based upon a request by a manufacturer accompanied by 
asatisfactory justification.
    (h) The manufacturer must perform test engine selection, 
shipping,preparation, service accumulation, and testing in such a manner 
as toassure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any enginestested 
during a Selective Enforcement Audit once a fail decision forthe audit 
has been reached in accordance withSec. 89.510(e).
    (2) The Administrator may approve retesting at other times basedupon 
a request by the manufacturer accompanied by a 
satisfactoryjustification.
    (3) The manufacturer may retest each engine a total of threetimes. 
The manufacturer must test each engine or vehicle the samenumber of 
times. The manufacturer may accumulate additional servicebefore 
conducting a retest, subject to the provisions of paragraph (c)of this 
section.
    (j) A manufacturer must test engines with the test 
procedurespecified in subpart E of this part to demonstrate compliance 
with theexhaust emission standard (or applicable FEL) for oxides of 
nitrogen.If alternate procedures were used in certification pursuant 
toSec. 89.114, then those alternate procedures must be used.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicabletest 
procedure specified in Sec. 89.508(a). The manufacturerrounds these 
results, in accordance with ASTM E29-93a, to thenumber of decimal places 
contained in the applicable emission standardexpressed to one additional 
significant figure. This procedure hasbeen incorporated by reference. 
See Sec. 89.6.
    (b) Final test results are calculated by summing the initial 
testresults derived in paragraph (a) of this section for each test 
engine,dividing by the number of tests conducted on the engine, and 
roundingin accordance with the procedure specified in paragraph (a) of 
thissection to the same number of decimal places contained in 
theapplicable standard expressed to one additional significant figure.
    (c) Within five working days after completion of testing of 
allengines pursuant to a test order, the manufacturer must submit to 
theAdministrator a report which includes the following information:
    (1) The location and description of the manufacturer's 
exhaustemission test facilities which were utilized to conduct 
testingreported pursuant to this section;
    (2) The applicable standards and/or FEL against which the 
engineswere tested;
    (3) A description of the engine and its associated emission-related 
component selection method used;
    (4) For each test conducted;
    (i) Test engine description, including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior 
totesting;
    (ii) Location where service accumulation was conducted 
anddescription of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding, and final test results for all 
exhaustemission tests, whether valid or invalid, and the reason 
forinvalidation, if applicable;
    (iv) A complete description of any modification, repair,preparation, 
maintenance, and/or testing which was performed on thetest engine and 
has not been reported pursuant to any other paragraphof this subpart and 
will not be performed on all other productionengines;
    (v) Where an engine was deleted from the test sequence 
byauthorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevantto 
the determination as to whether the new engines being manufacturedby the

[[Page 138]]

manufacturer do in fact conform with the regulations withrespect to 
which the certificate of conformity was issued; and
    (5) The following statement and endorsement:

    This report is submitted pursuant to sections 213 and 208 of 
theClean Air Act. This Selective Enforcement Audit was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
part89 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control proceduresfor the 
engine family tested have been made between receipt of thetest order and 
conclusion of the audit. All data and informationreported herein is, to 
the best of (Company Name) knowledge, true andaccurate. I am aware of 
the penalties associated with violations ofthe Clean Air Act and the 
regulations thereunder. (Authorized CompanyRepresentative.)

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57020, Oct. 23, 1998]



Sec. 89.510  Compliance with acceptable quality level and passing and failingcriteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant toSec. 
89.509(b), for one or more of the applicablepollutants, exceed the 
applicable emission standard or family emissionlevel.
    (c) The manufacturer must test engines comprising the test 
sampleuntil a pass decision is reached for all pollutants or a fail 
decisionis reached for one pollutant. A pass decision is reached when 
thecumulative number of failed engines, as defined in paragraph (b) 
ofthis section, for each pollutant is less than or equal to the 
passdecision number, as defined in paragraph (d) of this 
section,appropriate to the cumulative number of engines tested. A 
faildecision is reached when the cumulative number of failed engines 
forone or more pollutants is greater than or equal to the fail 
decisionnumber, as defined in paragraph (d) of this section, appropriate 
tothe cumulative number of engines tested.
    (d) The pass and fail decision numbers associated with thecumulative 
number of engines tested are determined by using the tablesin appendix A 
to this subpart, ``Sampling Plans for SelectiveEnforcement Auditing of 
Nonroad Engines,'' appropriate to theprojected sales as made by the 
manufacturer in its report to EPA underSec. 89.505(c)(1). In the tables 
in appendix A to thissubpart, sampling plan ``stage'' refers to the 
cumulativenumber of engines tested. Once a pass or fail decision has 
been madefor a particular pollutant, the number of engines with final 
testresults exceeding the emission standard for that pollutant shall 
notbe considered any further for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is madeon 
the last engine required to make a decision under paragraph (c) ofthis 
section.
    (f) The Administrator may terminate testing earlier than requiredin 
paragraph (c) of this section.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to 
anyengine failing pursuant to paragraph (b) of Sec. 89.510effective 
from the time that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformityfor a 
family which does not pass an SEA, pursuant to paragraphSec. 89.510(c), 
based on the first test or all testsconducted on each engine. This 
suspension will not occur before tendays after failure of the audit, 
unless the manufacturer requests anearlier suspension.
    (c) If the results of testing pursuant to these regulationsindicate 
that engines of a particular family produced at one plant ofa 
manufacturer do not conform to the regulations with respect to whichthe 
certificate of conformity was issued, the Administrator maysuspend the 
certificate of conformity with respect to that family forengines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in 
theapplication may be covered by a certificate of conformity, 
theAdministrator may suspend such certificate immediately in whole or 
inpart if the Administrator finds any one of the following infractionsto 
be substantial:

[[Page 139]]

    (1) The manufacturer refuses to comply with the provisions ofa test 
order issued by the Administrator under Sec. 89.503.
    (2) The manufacturer refuses to comply with any of therequirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information inany 
report or information provided to the Administrator under thissubpart.
    (4) The manufacturer renders inaccurate any test data submittedunder 
this subpart.
    (5) An EPA enforcement officer(s) or EPA authorizedrepresentative(s) 
is denied the opportunity to conduct activitiesrelated to entry and 
access as authorized in this subpart and awarrant or court order is 
presented to the manufacturer or the partyin charge of a facility in 
question.
    (6) An EPA enforcement officer(s) or EPA authorizedrepresentative(s) 
is unable to conduct activities related to entry andaccess as authorized 
in Sec. 89.506 because a manufacturerhas located a facility in a 
foreign jurisdiction where local lawprohibits those activities.
    (e) The Administrator must notify the manufacturer in writing ofany 
suspension or revocation of a certificate of conformity in wholeor in 
part; a suspension or revocation is effective upon receipt ofthe 
notification or ten days, except that the certificate isimmediately 
suspended with respect to any failed engines as providedfor in paragraph 
(a) of this section.
    (f) The Administrator may revoke a certificate of conformity for 
afamily when the certificate has been suspended pursuant to paragraph(b) 
or (c) of this section if the proposed remedy for thenonconformity, as 
reported by the manufacturer to the Administrator,is one requiring a 
design change or changes to the engine and/oremission control system as 
described in the application forcertification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, 
asprovided for in paragraph (a) of this section, the manufacturer 
musttake the following actions before the certificate is reinstated 
forthat failed engine:
    (1) Remedy the nonconformity.
    (2) Demonstrate that the engine conforms to applicable standardsor 
family emission levels by retesting the engine in accordance withthese 
regulations.
    (3) Submit a written report to the Administrator, after 
successfulcompletion of testing on the failed engine, which contains 
adescription of the remedy and test results for each engine in 
additionto other information that may be required by this part.
    (h) Once a certificate for a failed family has been 
suspendedpursuant to paragraph (b) or (c) of this section, the 
manufacturermust take the following actions before the Administrator 
will considerreinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the engines, describes theproposed 
remedy, including a description of any proposed qualitycontrol and/or 
quality assurance measures to be taken by themanufacturer to prevent 
future occurrences of the problem, and statesthe date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theseregulations 
by testing engines selected from normal production runs ofthat engine 
family, at the plant(s), port facility(ies) or associatedstorage 
facility(ies) specified by the Administrator, in accordancewith the 
conditions specified in the initial test order. If themanufacturer 
elects to continue testing individual engines aftersuspension of a 
certificate, the certificate is reinstated for anengine actually 
determined to be in conformance with the applicablestandards or family 
emission levels through testing in accordance withthe applicable test 
procedures, provided that the Administrator hasnot revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate for a family has been revoked 
underparagraph (f) of this section and the manufacturer desires to 
continueintroduction into commerce of a modified version of that family, 
thefollowing actions must be taken before the Administrator may 
considerissuing a certificate for that modified family:

[[Page 140]]

    (1) If the Administrator determines that the proposedchange(s) in 
engine design may have an effect on emission performancedeterioration, 
the Administrator will notify the manufacturer, withinfive working days 
after receipt of the report in paragraph (g) of thissection, whether 
subsequent testing under this subpart is sufficientto evaluate the 
proposed change or changes or whether additionaltesting is required; and
    (2) After implementing the change or changes intended to remedythe 
nonconformity, the manufacturer must demonstrate that the modifiedengine 
family does in fact conform with these regulations by testingengines 
selected from normal production runs of that modified enginefamily in 
accordance with the conditions specified in the initial testorder. If 
the subsequent audit results in passing of the audit, theAdministrator 
will reissue the certificate or issue a new certificate,as the case may 
be, to include that family, provided that themanufacturer has satisfied 
the testing requirements of paragraph (i)(1) of this section. If the 
subsequent audit is failed, the revocationremains in effect. Any design 
change approvals under this subpart arelimited to the family affected by 
the test order.
    (j) At any time subsequent to an initial suspension of acertificate 
of conformity for a test engine pursuant to paragraph (a)of this 
section, but not later than 15 days (or such other period asmay be 
allowed by the Administrator) after notification of theAdministrator's 
decision to suspend or revoke a certificate ofconformity in whole or in 
part pursuant to paragraph (b), (c), or (f)of this section, a 
manufacturer may request a hearing as to whetherthe tests have been 
properly conducted or any sampling methods havebeen properly applied.
    (k) Any suspension of a certificate of conformity under paragraph(d) 
of this section:
    (1) will be in writing and will include the offer of anopportunity 
for a hearing conducted in accordance withSec. Sec. 89.512, 89.513, and 
89.514 and
    (2) need not apply to engines no longer in the hands of 
themanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section and prior to the commencement of 
ahearing under Sec. 89.512, if the manufacturer demonstratesto the 
Administrator's satisfaction that the decision to suspend,revoke, or 
void the certificate was based on erroneous information,the 
Administrator will reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engineswhen 
conducting an audit of a family subsequent to a failure of an SEAand 
while reauditing of the failed family, it may request that 
theAdministrator conditionally reinstate the certificate for that 
family.The Administrator may reinstate the certificate subject to 
thecondition that the manufacturer consents to recall all engines of 
thatfamily produced from the time the certificate is 
conditionallyreinstated if the family fails the subsequent audit at the 
level ofthe standard and to remedy any nonconformity at no expense to 
theowner.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator'sdecision 
under Sec. 89.511 (b), (c), (d), or (f) to suspendor revoke a 
certificate or disputes the basis for an automaticsuspension pursuant to 
Sec. 89.511 (a), the manufacturer mayrequest a public hearing.
    (b) The manufacturer's request must be filed with theAdministrator 
not later than 15 days after the Administrator'snotification of the 
decision to suspend or revoke, unless otherwisespecified by the 
Administrator. The manufacturer must simultaneouslyserve two copies of 
this request upon the Director of the EnginePrograms and Compliance 
Division and file two copies with the HearingClerk of the Agency. 
Failure of the manufacturer to request a hearingwithin the time provided 
constitutes a waiver of the right to ahearing. Subsequent to the 
expiration of the period for requesting ahearing as of right, the 
Administrator may, at her or his discretionand for good cause shown, 
grant the manufacturer a

[[Page 141]]

hearing tocontest the suspension or revocation.
    (c) The manufacturer's request for a public hearing must include:
    (1) A statement as to which engine configuration(s) within afamily 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by 
themanufacturer at the hearing, except that in the case of the 
hearingrequested under Sec. 89.511(j), the hearing is restricted tothe 
following issues:
    (i) Whether tests have been properly conducted, specifically,whether 
the tests were conducted in accordance with applicableregulations under 
this part and whether test equipment was properlycalibrated and 
functioning;
    (ii) Whether sampling plans have been properly applied,specifically, 
whether sampling procedures specified in appendix A ofthis subpart were 
followed and whether there exists a basis fordistinguishing engines 
produced at plants other than the one fromwhich engines were selected 
for testing which would invalidate theAdministrator's decision under 
Sec. 89.511(c);
    (3) A statement specifying reasons why the manufacturer believesit 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the 
manufacturer'sposition on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57020, Oct. 23, 1998]



Sec. 89.513  Administrative procedures for public hearing.

    (a) The Presiding Officer is an Administrative Law Judge 
appointedpursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as amended).
    (b) The Judicial Officer is an officer or employee of the 
Agencyappointed as a Judicial Officer by the Administrator, pursuant to 
thissection, who meets the qualifications and performs functions 
asfollows:
    (1) Qualifications. A Judicial Officer may be a permanent 
ortemporary employee of the Agency who performs other duties for 
theAgency. The Judicial Officer may not be employed by the Office 
ofEnforcement or have any connection with the preparation orpresentation 
of evidence for a hearing held pursuant to this subpart.The Judicial 
Officer must be a graduate of an accredited law schooland a member in 
good standing of a recognized Bar Association of anystate or the 
District of Columbia.
    (2) Functions. The Administrator may consult with theJudicial 
Officer or delegate all or part of the Administrator'sauthority to act 
in a given case under this section to a JudicialOfficer, provided that 
this delegation does not preclude the JudicialOfficer from referring any 
motion or case to the Administrator whenthe Judicial Officer determines 
such referral to be appropriate.
    (c) For the purposes of this section, one or more JudicialOfficers 
may be designated. As work requires, a Judicial Officer maybe designated 
to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requestedunder 
Sec. 89.511(j), when it clearly appears from the dataand other 
information contained in the request for a hearing that nogenuine and 
substantial question of fact or law exists with respect tothe issues 
specified in Sec. 89.512(c)(2), the Administratormay enter an order 
denying the request for a hearing and reaffirmingthe original decision 
to suspend or revoke a certificate ofconformity.
    (2) In the case of a hearing requested under Sec. 89.512to 
challenge a suspension of a certificate of conformity for thereasons 
specified in Sec. 89.511(d), when it clearly appearsfrom the data and 
other information contained in the request for thehearing that no 
genuine and substantial question of fact or law existswith respect to 
the issue of whether the refusal to comply with theprovisions of a test 
order or any other requirement ofSec. 89.503 was caused by conditions 
and circumstancesoutside the control of the manufacturer, the 
Administrator may enteran order denying the request for a hearing and 
suspending thecertificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of thissection 
has the

[[Page 142]]

force and effect of a final decision of theAdministrator, as issued 
pursuant to Sec. 89.515.
    (4) If the Administrator determines that a genuine and 
substantialquestion of fact or law does exist with respect to any of the 
issuesreferred to in paragraphs (d)(1) and (d)(2) of this section, 
theAdministrator will grant the request for a hearing and publish 
anotice of public hearing in the Federal Register or by suchother means 
as the Administrator finds appropriate to provide noticeto the public.
    (e) Filing and service. (1) An original and two copies ofall 
documents or papers required or permitted to be filed pursuant tothis 
section and Sec. 89.512(c) must be filed with theHearing Clerk of the 
Agency. Filing is considered timely if mailed, asdetermined by the 
postmark, to the Hearing Clerk within the timeallowed by this section 
and Sec. 89.512(b). If filing is tobe accomplished by mailing, the 
documents must be sent to the addressset forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented 
inwritten form. Copies of written testimony will be served upon 
allparties as soon as practicable prior to the start of the hearing. 
Acertificate of service will be provided on or accompany each documentor 
paper filed with the Hearing Clerk. Documents to be served upon 
theDirector of the Engine Programs and Compliance Division must be 
sentby registered mail to: Director, Engine Programs and 
ComplianceDivision (6405-J), U.S. Environmental Protection Agency, 
1200Pennsylvania Ave., NW., Washington, DC 20460. Service by 
registeredmail is complete upon mailing.
    (f) Computation of time. (1) In computing any period of 
timeprescribed or allowed by this section, except as otherwise 
provided,the day of the act or event from which the designated period of 
timebegins to run is not included. Saturdays, Sundays, and federal 
legalholidays are included in computing the period allowed for the 
filingof any document or paper, except that when the period expires on 
aSaturday, Sunday, or federal legal holiday, the period is extended 
toinclude the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted to do an act is computed from the time of service, exceptthat 
when service is accomplished by mail, three days will be added tothe 
prescribed period.
    (g) Consolidation. The Administrator or the PresidingOfficer in his 
discretion may consolidate two or more proceedings tobe held under this 
section for the purpose of resolving one or moreissues whenever it 
appears that consolidation will expedite orsimplify consideration of 
these issues. Consolidation does not affectthe right of any party to 
raise issues that could have been raised ifconsolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings underSec. 89.512 
will be scheduled to commence within 14 days ofreceipt of the 
application in Sec. 89.512.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57020, Oct. 23, 1998]



Sec. 89.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84 (i) to(s) apply for 
hearings requested pursuant to Sec. 89.512,suspension, revocation, or 
voiding of a certificate of conformity.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84 (t) to(aa) apply for 
appeals filed with respect to hearings held pursuant toSec. 89.514.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.516  Treatment of confidential information.

    The provisions for treatment of confidential information asdescribed 
in Sec. 89.7 apply.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]

[[Page 143]]



  Sec. Appendix A to Subpart F ofPart 89--Sampling Plans for Selective 
                 Enforcement Auditing ofNonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
                                                                   Code
                   Annualengine family sales                      letter
------------------------------------------------------------------------
20-50..........................................................   AA \1\
20-99..........................................................        A
100-299........................................................        B
300-499........................................................        C
500 or greater.................................................        D
------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the samplingplan for code
  letter ``AA'' or sampling plan for codeletter ``A'' for Selective
  Enforcement Audits of enginefamilies with annual sales between 20 and
  50 engines. Additionally,the manufacturer may switch between these
  plans during the audit.


              Table 2--Sampling Plan for Code Letter``AA''
                      [Sample inspection criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................            0        (\2\)
4.............................................            0        (\2\)
5.............................................            1            5
6.............................................            1            6
7.............................................            2            6
8.............................................            2            7
9.............................................            3            7
10............................................            3            8
11............................................            4            8
12............................................            4            9
13............................................            5            9
14............................................            5           10
15............................................            6           10
16............................................            6           10
17............................................            7           10
18............................................            8           10
19............................................            8           10
20............................................            9           10
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 3--Sampling Plan for Code Letter``A''
                      [Sample inspection criteria]
------------------------------------------------------------------------
                     Stage                        PassNo.      Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................            0        (\2\)
5.............................................            0        (\2\)
6.............................................            1            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            8
11............................................            3            8
12............................................            4            9
13............................................            5           10
14............................................            5           10
15............................................            6           11
16............................................            6           11
17............................................            7           12
18............................................            7           12
19............................................            8           13
20............................................            8           13
21............................................            9           14
22............................................           10           14
23............................................           10           15
24............................................           11           15
25............................................           11           16
26............................................           12           16
27............................................           12           17
28............................................           13           17
29............................................           14           17
30............................................           16           17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 4--Sampling Plan for Code Letter``B''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        PassNo.      Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            1            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            8
11............................................            3            9
12............................................            4            9
13............................................            4           10
14............................................            5           10
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            8           13
20............................................            8           14
21............................................            9           14
22............................................            9           15
23............................................           10           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           18
30............................................           13           19
31............................................           14           19
32............................................           14           20
33............................................           15           20
34............................................           16           21
35............................................           16           21
36............................................           17           22
37............................................           17           22
38............................................           18           22
39............................................           18           22
40............................................           21           22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


[[Page 144]]


               Table 5--Sampling Plan for CodeLetter ``C''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            0            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            9
11............................................            3            9
12............................................            4           10
13............................................            4           10
14............................................            5           11
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            7           13
20............................................            8           14
21............................................            8           14
22............................................            9           15
23............................................           10           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           18
30............................................           13           19
31............................................           14           19
32............................................           14           20
33............................................           15           20
34............................................           15           21
35............................................           16           21
36............................................           16           22
37............................................           17           22
38............................................           18           23
39............................................           18           23
40............................................           19           24
41............................................           19           24
42............................................           20           25
43............................................           20           25
44............................................           21           26
45............................................           21           27
46............................................           22           27
47............................................           22           27
48............................................           23           27
49............................................           23           27
50............................................           26           27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 6--Sampling Plan for Code Letter``D''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        PassNo.      Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            0            6
7.............................................            1            7
8.............................................            2            8
9.............................................            2            8
10............................................            3            9
11............................................            3            9
12............................................            4           10
13............................................            4           10
14............................................            5           11
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            7           13
20............................................            8           14
21............................................            8           14
22............................................            9           15
23............................................            9           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           19
30............................................           13           19
31............................................           14           20
32............................................           14           20
33............................................           15           21
34............................................           15           21
35............................................           16           22
36............................................           16           22
37............................................           17           23
38............................................           17           23
39............................................           18           24
40............................................           18           24
41............................................           19           25
42............................................           19           26
43............................................           20           26
44............................................           21           27
45............................................           21           27
46............................................           22           28
47............................................           22           28
48............................................           23           29
49............................................           23           29
50............................................           24           30
51............................................           24           30
52............................................           25           31
53............................................           25           31
54............................................           26           32
55............................................           26           32
56............................................           27           33
57............................................           27           33
58............................................           28           33
59............................................           28           33
60............................................           32           33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


[59 FR 31335, June 17, 1994, as amended at 70 FR 40446, July13, 2005]



          Subpart G_Importation of Nonconforming NonroadEngines



Sec. 89.601  Applicability.

    (a) Except where otherwise indicated, this subpart is applicableto 
nonroad engines for which the Administrator has promulgatedregulations 
under this part prescribing emission standards

[[Page 145]]

andnonroad vehicles and equipment containing such nonroad engines 
thatare offered for importation or imported into the United States, 
butwhich engines, at the time of conditional importation, are not 
coveredby certificates of conformity issued under section 213 and 
section206(a) of the Clean Air Act as amended (that is, which 
arenonconforming nonroad engines as defined in Sec. 89.602),and this 
part. Compliance with regulations under this subpart does notrelieve any 
person or entity from compliance with other applicableprovisions of the 
Clean Air Act.
    (b) Regulations prescribing further procedures for the importationof 
nonroad engines and nonroad vehicles and equipment into the 
customsterritory of the United States, as defined in 19 U.S.C. 1202, are 
setforth in U.S. Bureau of Customs regulations.
    (c) For the purposes of this subpart, the term ``nonroadengine'' 
includes all nonroad engines incorporated into nonroadequipment or 
nonroad vehicles at the time they are imported or offeredfor import into 
the United States.
    (d) Importers must complete the appropriate EPA declaration 
formbefore importing an engine. These forms are available on the 
Internetat http://www.epa.gov/OTAQ/imports/ or by phone at734-214-4100. 
Importers must keep the forms for fiveyears and make them available upon 
request.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998, 
as amended at 72 FR 53129, Sept. 18, 2007]



Sec. 89.602  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by theAdministrator 
under section 213 and section 206(a) of the Act.
    Currently valid certificate of conformity. A certificate 
ofconformity for which the current date is within the effective periodas 
specified on the certificate of conformity, and which has not 
beenwithdrawn, superseded, voided, suspended, revoked, or 
otherwiserendered invalid.
    Fifteen working day hold period. The period of time betweena request 
for final admission and the automatic granting of finaladmission (unless 
EPA intervenes) for a nonconforming nonroad engineconditionally imported 
pursuant to Sec. 89.605 orSec. 89.609. Day one of the hold period is 
the first workingday (see definition for ``working day'' in this 
section)after the Engine Programs and Compliance Division of EPA 
receives acomplete and valid application for final admission.
    Independent commercial importer (ICI). An importer who isnot an 
original engine manufacturer (OEM) (see definition below), butis the 
entity in whose name a certificate of conformity for a class ofnonroad 
engines has been issued.
    Model year for imported engines. The manufacturer's annualproduction 
period (as determined by the Administrator) which includesJanuary 1 of 
the calendar year; provided, that if the manufacturer hasno annual 
production period, the term ``model year'' meansthe calendar year in 
which a nonroad engine is modified. Anindependent commercial importer 
(ICI) is deemed to have produced anonroad engine when the ICI has 
modified (including labeling) thenonconforming nonroad engine to meet 
applicable emission requirements.
    Nonconforming nonroad engine. A nonroad engine which is notcovered 
by a certificate of conformity prior to final or conditionaladmission 
(or for which such coverage has not been adequatelydemonstrated to EPA) 
and which has not been finally admitted into theUnited States under the 
provisions of Sec. 89.605 orSec. 89.609.
    Original engine manufacturer (OEM). The entity whichoriginally 
manufactured the nonroad engine.
    Original production (OP) year. The calendar year in whichthe nonroad 
engine was originally produced by the OEM.
    Original production (OP) years old. The age of a nonroadengine as 
determined by subtracting the original production year ofthe nonroad 
engine from the calendar year of importation.
    Production changes. Those changes in nonroad engineconfiguration, 
equipment, or calibration which are made by an OEM orICI in the course 
of nonroad engine production and required to bereported under Sec. 
89.123.

[[Page 146]]

    United States. United States includes the customsterritory of the 
United States as defined in 19 U.S.C. 1202, and theVirgin Islands, Guam, 
American Samoa, and the Commonwealth of theNorthern Mariana Islands.
    Useful life. A period of time as specified in subpart B ofthis part 
which for a nonconforming nonroad engine begins at the timeof resale 
(for a nonroad engine owned by the ICI at the time ofimportation) or 
release to the owner (for a nonroad engine not ownedby the ICI at the 
time of importation) of the nonroad engine by theICI after modification 
and/or testing pursuant toSec. 89.605 or Sec. 89.609.
    Working day. Any day on which federal government offices areopen for 
normal business. Saturdays, Sundays, and official federalholidays are 
not working days.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998]



Sec. 89.603  General requirements for importation of nonconforming nonroadengines.

    (a) A nonconforming nonroad engine offered for importation intothe 
United States is to be imported only by an Independent 
CommercialImporter (ICI) who is a holder of a currently valid 
certificate ofconformity unless an exemption or exclusion is granted by 
theAdministrator under Sec. 89.611 of this subpart. For anonroad engine 
imported pursuant to Sec. 89.605, the ICImust hold a currently valid 
certificate of conformity for thatspecific nonroad engine model.
    (b) Any nonroad engine imported into the United States must have 
alegible unique engine identification number permanently affixed to 
orengraved on the engine.
    (c) Final admission may not be granted unless:
    (1) The nonroad engine is covered by a certificate of 
conformityissued under subpart B of this part in the name of the ICI and 
the ICIhas complied with all requirements of Sec. 89.605; or
    (2) The nonroad engine is modified and emission tested inaccordance 
with the provisions of Sec. 89.609 and the ICIhas complied with all 
other requirements of Sec. 89.609; or
    (3) The nonroad engine is exempted or excluded underSec. 89.611.
    (d) The ICI must submit to the Engine Programs and 
ComplianceDivision of EPA a copy of all approved applications for 
certificationused to obtain certificates of conformity for the purpose 
of importingnonconforming nonroad engines pursuant to Sec. 89.605 
orSec. 89.609. In addition, the ICI must submit to the EnginePrograms 
and Compliance Division a copy of all approved productionchanges 
implemented pursuant to Sec. 89.605 or subpart B ofthis part. 
Documentation submitted pursuant to this paragraph (d) mustbe provided 
to the Engine Programs and Compliance Division within 10working days of 
approval of the certification application (orproduction change) by EPA.
    (e)(1) The applicable emission standards for engines imported byan 
ICI under this subpart are the emission standards applicable to 
theOriginal Production (OP) year of the engine.
    (2) Where engine manufacturers have choices in emission standardsfor 
one or more pollutants in a given model year, the standard thatapplies 
to the ICI is the least stringent standard for that pollutantapplicable 
to the OP year for the appropriate power category.
    (3) ICIs may not generate, use or trade emission credits orotherwise 
participate in any way in the averaging, banking and tradingprogram.
    (4) An ICI may import no more than a total of five engines underthis 
part for any given model year, except as allowed by paragraph (e)(5) of 
this section. For ICIs owned by a parent company, theimportation limit 
includes importation by the parent company and allits subsidiaries.
    (5) An ICI may exceed the limit outlined in paragraph (e)(4) ofthis 
section, provided that any engines in excess of the limit meetthe 
emission standards and other requirements outlined in theapplicable 
provisions of Part 89 or 1039 of this chapter for the modelyear in which 
the engine is modified (instead

[[Page 147]]

of the emissionstandards and other requirements applicable for the OP 
year of thevehicle/engine).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998; 70 FR 40446, July 13, 2005]



Sec. 89.604  Conditional admission.

    (a) A nonroad engine offered for importation underSec. 89.605 or 
Sec. 89.609 may be conditionallyadmitted into the United States. These 
engines are refused finaladmission, unless at the time of conditional 
admission the importerhas submitted to the Administrator a written 
report that the subjectnonroad engine has been permitted conditional 
admission pending EPAapproval of its application for final admission 
underSec. 89.605 or Sec. 89.609. This written report isto contain the 
following:
    (1) Identification of the importer of the nonroad engine and 
theimporter's address, telephone number, and taxpayer 
identificationnumber;
    (2) Identification of the nonroad engine owner, the owner'saddress, 
telephone number, and taxpayer identification number;
    (3) Identification of the nonroad engine including make, 
model,identification number, and original production year;
    (4) Information indicating under what provision of theseregulations 
the nonroad engine is to be imported;
    (5) Identification of the place where the subject nonroad engineis 
to be stored until EPA approval of the importer's application tothe 
Administrator for final admission;
    (6) Authorization for EPA enforcement officers to conductinspections 
or testing otherwise permitted by the Act or regulationsthereunder;
    (7) Identification of the Independent Commercial Importer's 
(ICI)certificate of conformity that permits the ICI to import that 
nonroadengine (for importation under Sec. 89.605 orSec. 89.609); and
    (8) Such other information as is deemed necessary by 
theAdministrator.
    (b) EPA will not require a U.S. Customs Service bond for 
anonconforming nonroad engine which is imported underSec. 89.605 or 
Sec. 89.609. The period ofconditional admission may not exceed 120 
days. Nonroad enginesimported under Sec. 89.605 or Sec. 89.609 may 
notbe operated during the period of conditional admission except for 
thatoperation necessary to comply with the requirements of this 
subpart.During the period of conditional admission applicable toSec. 
89.605 or Sec. 89.609, the importer muststore the nonroad engine at a 
location where the Administrator hasreasonable access to the nonroad 
engine for inspection.
    (c) During the period of conditional admission underSec. 89.605 or 
Sec. 89.609, an ICI may transferresponsibility of a nonroad engine to 
another qualified ICI for thepurposes of complying with this subpart.
    (1) The transferee ICI must be a holder of a currently 
validcertificate of conformity for the specific nonroad engine 
beingtransferred or be authorized to import the nonroad engine pursuant 
toSec. 89.609 as of the transfer date. The transferee ICI mustcomply 
with all the requirements of Sec. 89.603,Sec. 89.604, and either Sec. 
89.605 orSec. 89.609, as applicable.
    (2) For the purpose of this subpart, the transferee ICI 
has``imported'' the nonroad engine as of the transfer date asdesignated 
in a written record that is signed by both ICIs.
    (3) The ICI that originally imported the nonroad engine 
isresponsible for all requirements of this subpart from the actual 
dateof importation until the date of transfer as designated in the 
writtenrecord. The transferee ICI is responsible for all requirements of 
thissubpart beginning on the date of transfer.
    (4) A copy of the written record is to be submitted to the 
EnginePrograms and Compliance Division of EPA within five working days 
ofthe transfer date.
    (d) Notwithstanding any other requirement of this subpart or 
U.S.Customs Service regulations, an ICI may also assume responsibility 
forthe modification and testing of a nonconforming nonroad engine 
whichwas previously imported by another party. The ICI must be a holder 
ofa currently valid certificate of conformity for that specific 
nonroadengine or authorized to import it pursuant to Sec. 89.609 atthe 
time of assuming such responsibility.

[[Page 148]]

The ICI must complywith all the requirements of Sec. 89.603,Sec. 
89.604, and either Sec. 89.605 orSec. 89.609, as applicable. For the 
purposes of thissubpart, the ICI has ``imported'' the nonroad engine as 
ofthe date the ICI assumes responsibility for the modification 
andtesting of the nonroad engine. The ICI must submit 
writtennotification to the Engine Programs and Compliance Division of 
EPAwithin 10 working days of the assumption of that responsibility.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998]



Sec. 89.605  Final admission of certified nonroad engines.

    (a) A nonroad engine may be finally admitted into the UnitedStates 
upon approval of the ICI's application to the Administrator.The 
application is made by completing EPA forms in accordance with 
EPAinstructions. The application contains:
    (1) The information required in Sec. 89.604(a);
    (2) Information demonstrating that the nonroad engine has 
beenmodified in accordance with a valid certificate of 
conformity.Demonstration is made in one of the following ways:
    (i) The ICI attests that the nonroad engine has been modified 
inaccordance with the provisions of the ICI's certificate of 
conformity;presents to EPA a statement written by the applicable 
Original EngineManufacturer that the Original Engine Manufacturer must 
provide to theICI, and to EPA, information concerning production changes 
to theclass of nonroad engines described in the ICI's application 
forcertification; delivers to the Engine Programs and Compliance 
Divisionof EPA notification by the ICI of any production changes 
alreadyimplemented by the Original Engine Manufacturer at the time 
ofapplication and their effect on emissions; and obtains from EPAwritten 
approval to use this demonstration option; or
    (ii) The ICI attests that the nonroad engine has been modified 
inaccordance with the provisions of the ICI's certificate of 
conformity.The ICI also attests that it has conducted, within 120 days 
of entry,an applicable and valid emission test on every third nonroad 
engineimported under that certificate of conformity to 
demonstratecompliance with Federal emission requirements. The test is to 
beconducted at a laboratory located within the United States. 
Sequencingof the tests is determined by the date of importation of each 
nonroadengine beginning with the prototype nonroad engine used to obtain 
theapplicable certificate of conformity. Should the ICI exceed 
athreshold of 300 nonroad engines imported under the certificate 
ofconformity without adjustments or other changes in accordance 
withparagraph (a)(3) of this section, the amount of required testing 
isreduced to every fifth nonroad engine.
    (3) The results of every emission test which the ICI conducted onthe 
nonroad engine pursuant to paragraph (a)(2)(ii) of this section.Should a 
subject nonroad engine fail an emission test at any time, thefollowing 
procedures are applicable:
    (i) The ICI may either:
    (A) Conduct one retest that involves no adjustment of the 
nonroadengine from the previous test (for example, adjusting the RPM, 
timing,air-to-fuel ratio, and so forth) other than adjustments to 
adjustableparameters that, upon inspection, were found to be out of 
tolerance.When such an allowable adjustment is made, the parameter may 
be resetonly to the specified (that is, nominal) value (and not any 
othervalue within the tolerance band); or
    (B) Initiate a change in production (production change) under 
theprovisions of subpart B of this part that causes the nonroad engine 
tomeet federal emission requirements.
    (ii) If the ICI chooses to retest in accordance with paragraph 
(a)(3)(i)(A) of this section:
    (A) The retests are to be completed no later than five workingdays 
subsequent to the first emission test;
    (B) Should the subject nonroad engine fail the second emissiontest, 
then the ICI must initiate a change in production (a productionchange) 
under the provisions of subpart B of this part that causes thenonroad 
engine to meet federal emission requirements.
    (iii) If the ICI chooses to initiate a change in production 
(aproduction change) under the provisions of subpart B of this part 
thatcauses the nonroad

[[Page 149]]

engine to meet federal requirements, a changeinvolving adjustments of 
adjustable nonroad engine parameters (forexample, adjusting the RPM, 
timing, air/fuel ratio) represents achange in the specified (that is, 
nominal) value to be deemedacceptable by EPA.
    (iv) A production change made in accordance with this section isto 
be implemented on all subsequent nonroad engines imported under 
thecertificate of conformity after the date of importation of the 
nonroadengine which gave rise to the production change.
    (v) Commencing with the first nonroad engine receiving theproduction 
change, every third nonroad engine imported under thecertificate of 
conformity is to be emission tested to demonstratecompliance with 
federal emission requirements until, as in paragraph(a)(2)(ii) of this 
section, a threshold of 300 nonroad enginesimported under the 
certificate of conformity is exceeded withoutadjustments or other 
changes in accordance with paragraph (a)(3)(i)(A)of this section, at 
which time the amount of required emission testingis reduced to every 
fifth nonroad engine.
    (vi) A report concerning these production changes is to be made 
tothe Engine Programs and Compliance Division of EPA within ten 
workingdays of initiation of the production change. The cause of any 
failureof an emission test is to be identified, if known;
    (4) The applicable deterioration factor, if any;
    (5) The emission test results adjusted by the deteriorationfactor;
    (6) Other information that may be specified by applicableregulations 
or on the certificate of conformity under which thenonroad engine has 
been modified in order to assure compliance withrequirements of the Act;
    (7) All information required under Sec. 89.610 relatedto 
maintenance, warranties, and labeling;
    (8) An attestation by the ICI that the ICI is responsible for 
thenonroad engine's compliance with federal emission 
requirements,regardless of whether the ICI owns the nonroad engine 
imported underthis section;
    (9) The name, address, and telephone number of the person who theICI 
prefers to receive EPA notification underSec. 89.605(c);
    (10) An attestation by the ICI that all requirements ofSec. 89.607 
and Sec. 89.610 have been met; and
    (11) Other information as is deemed necessary by theAdministrator.
    (b) EPA approval for final admission of a nonroad engine underthis 
section is to be presumed not to have been granted if arequirement of 
this subpart has not been met. This includes, but isnot limited to, 
properly modifying the nonroad engine to be inconformity in all material 
respects with the description in theapplication for certification or not 
complying with the provisions ofSec. 89.605(a)(2) or if the final 
emission test results,adjusted by the deterioration factor, if 
applicable, do not complywith applicable emission standards.
    (c) Except as provided in paragraph (b) of this section, EPAapproval 
for final admission of a nonroad engine under this section ispresumed to 
have been granted if the ICI does not receive oral orwritten notice from 
EPA to the contrary within 15 working days of thedate that the Engine 
Programs and Compliance Division of EPA receivesthe ICI's application 
under paragraph (a) of this section. EPA noticeof nonapproval may be 
made to any employee of the ICI. It is theresponsibility of the ICI to 
ensure that the Engine Programs andCompliance Division of EPA receives 
the application and to confirm thedate of receipt. During this 15 
working day hold period, the nonroadengine is to be stored at a location 
where the Administrator hasreasonable access to the nonroad engine for 
the Administrator'sinspection. The storage is to be within 50 miles of 
the ICI's testingfacility to allow the Administrator reasonable access 
for inspectionand testing. A storage facility not meeting this criterion 
must beapproved in writing by the Administrator prior to the submittal 
of theICI's application under paragraph (a) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998]

[[Page 150]]



Sec. 89.606  Inspection and testing of imported nonroad engines.

    (a) In order to allow the Administrator to determine whether anICI's 
production nonroad engines comply with applicable emissionrequirements 
or requirements of this subpart, an EPA enforcementofficer or authorized 
representative is authorized to conductinspections and/or tests of 
nonroad engines imported by the ICI. TheICI must admit an EPA 
enforcement officer or authorized representativeduring operating hours 
to any of the following places upon demand andupon presentation of 
credentials:
    (1) Any facility where any nonroad engine imported by the ICIunder 
this subpart was or is being modified, tested, or stored and
    (2) Any facility where any record or other document relating 
tomodification, testing, or storage of the nonroad engine, or requiredto 
be kept by Sec. 89.607, is located. EPA may requireinspection or 
testing of nonroad engines at the test facility used bythe ICI or at an 
EPA-designated testing facility, with transportationand/or testing costs 
to be borne by the ICI.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, an EPA enforcement officer or authorized 
representativeis allowed during operating hours:
    (1) To inspect and monitor any part or aspect of activitiesrelating 
to the ICI's modification, testing, and/or storage of nonroadengines 
imported under this subpart;
    (2) To inspect and make copies of record(s) or document(s) relatedto 
modification, testing, and storage of a nonroad engine, or requiredby 
Sec. 89.607; and
    (3) To inspect and photograph any part or aspect of the 
nonroadengine and any component used in the assembly thereof.
    (c) An EPA enforcement officer or authorized representative is tobe 
furnished, by those in charge of a facility being inspected, withsuch 
reasonable assistance as the officer or representative mayrequest to 
help discharge any function listed in this subpart. An ICImust make 
arrangements with those in charge of a facility operated forits benefit 
to furnish such reasonable assistance without charge toEPA. Reasonable 
assistance includes, but is not limited to, clerical,copying, 
interpretation and translation services, and the makingavailable on 
request of personnel of the facility being inspectedduring their working 
hours to inform the EPA enforcement officer orauthorized representative 
of how the facility operates and to answerany questions.
    (d) The requirements of paragraphs (a), (b), and (c) of thissection 
apply whether or not the ICI owns or controls the facility inquestion. 
It is the ICI's responsibility to make such arrangements asmay be 
necessary to assure compliance with paragraphs (a), (b), and(c) of this 
section. Failure to do so, or other failure to comply withparagraphs 
(a), (b), or (c), may result in sanctions as provided forin the Act or 
Sec. 89.612(e).
    (e) Duly designated enforcement officers are authorized to proceedex 
parte to seek warrants authorizing the inspection or testing of 
thenonroad engines described in paragraph (a) of this section whether 
ornot the enforcement officers first attempted to seek permission 
fromthe ICI or facility owner to inspect such nonroad engines.
    (f) The results of the Administrator's test under this 
sectioncomprise the official test data for the nonroad engine for 
purposes ofdetermining whether the nonroad engine should be permitted 
final entryunder Sec. 89.605 or Sec. 89.609.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.607  Maintenance of independent commercial importer's records.

    (a) The Independent Commercial Importer (ICI) subject to any ofthe 
provisions of this subpart must establish and maintain 
adequatelyorganized and indexed records, correspondence and other 
applicabledocuments relating to the certification, modification, test, 
purchase,sale, storage, registration, and importation of that nonroad 
engine.The ICI must retain such records for 8 years from the date of 
finaladmission or exportation of a nonconforming nonroad engine imported 
bythe ICI. These records include, but are not limited to:

[[Page 151]]

    (1) The declaration required by U.S. Bureau of Customsregulations.
    (2) Any documents or other written information required by afederal 
government agency to be submitted or retained in conjunctionwith the 
certification, importation or emission testing (ifapplicable) of nonroad 
engines;
    (3) All bills of sale, invoices, purchase agreements, 
purchaseorders, principal or agent agreements, and correspondence 
between theICI and the ultimate purchaser of each nonroad engine and 
between anyagents of the above parties;
    (4) For nonroad engines imported by an ICI pursuant toSec. 89.605 
or Sec. 89.609, documents providingparts identification data (including 
calibration changes and partnumbers and location of such parts on each 
nonroad engine) associatedwith the emission control system installed on 
each nonroad enginedemonstrating that such emission control system was 
properly installedon such nonroad engine;
    (5) For nonroad engines imported by an ICI pursuant toSec. 89.605 
or Sec. 89.609, documentsdemonstrating that, where applicable, each 
nonroad engine was emissiontested in accordance with subpart E of this 
part and part 86, subpartI of this chapter;
    (6) Documents providing evidence that the requirements ofSec. 
89.610 have been met;
    (7) Documents providing evidence of compliance with all 
relevantrequirements of the Clean Air Act;
    (8) Documents providing evidence of the initiation of the 15working 
day hold period (that is, evidence that the applicationsubmitted 
pursuant to Sec. 89.605(a) orSec. 89.609(b) was received by EPA) for 
each nonroad engineimported pursuant to Sec. 89.605 or Sec. 89.609;
    (9) For nonroad engines owned by the ICI at the time ofimportation, 
documents providing evidence of the date of sale and dateof delivery to 
the ultimate purchaser, together with the name,address, and telephone 
number of the ultimate purchaser for eachnonroad engine imported 
pursuant to Sec. 89.605 orSec. 89.609;
    (10) For nonroad engines not owned by the ICI at the time 
ofimportation, documents providing evidence and date of release to 
theowner (including owner's name, address, and telephone number) for 
eachnonroad engine imported pursuant to Sec. 89.605 orSec. 89.609;
    (11) Documents providing evidence of the date of originalmanufacture 
of the nonroad engine. The importer may substitute analternate date in 
lieu of the date of original manufacture, providedthat the substitution 
of such alternate date is approved in advance bythe Administrator.
    (b) The ICI is responsible for ensuring the maintenance of 
recordsrequired by this section, regardless of whether or not facilities 
usedby the ICI to comply with requirements of this subpart are under 
thecontrol of the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.608  ``In Use'' inspections and recall requirements.

    (a) Nonroad engines which have been imported by an 
IndependentCommercial Importer (ICI) pursuant to Sec. 89.605 orSec. 
89.609 and finally admitted by EPA may be inspected andemission tested 
by EPA for the recall period specified inSec. 89.104(b).
    (b) ICIs must maintain for eight years, and provide to EPA 
uponrequest, a list of owners or ultimate purchasers of all 
nonroadengines imported by the ICI under this subpart.
    (c) The Administrator must notify the ICI whenever theAdministrator 
has determined that a substantial number of a class orcategory of the 
ICI's nonroad engines, although properly maintainedand used, do not 
conform to the regulations prescribed under section213 of the Act when 
in actual use throughout their useful lives. Aftersuch notification, the 
recall regulations at subpart H of this partgovern the ICI's 
responsibilities. References to a manufacturer in therecall regulations 
apply to the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.609  Final admission of modification nonroad engines and test nonroadengines.

    (a) A nonroad engine may be imported under this section by 
anIndependent Commercial Importer (ICI) possessing a currently 
validcertificate of conformity only if:

[[Page 152]]

    (1) The nonroad engine is six original production years oldor older; 
and
    (2) The ICI's name has not been placed on a currently effectiveEPA 
list of ICIs ineligible to import such modification/test nonroadengines, 
as described in paragraph (e) of this section; and
    (3) The ICI has a currently valid certificate of conformity forthe 
same nonroad engine class and fuel type as the nonroad enginebeing 
imported.
    (b) A nonroad engine conditionally imported under this section maybe 
finally admitted into the United States upon approval of the 
ICI'sapplication by the Administrator. The application is to be made 
bycompleting EPA forms, in accordance with EPA instructions. The 
ICIincludes in the application:
    (1) The identification information required inSec. 89.604;
    (2) An attestation by the ICI that the nonroad engine has 
beenmodified and tested in accordance with the applicable emission 
testsas specified in Subpart B Sec. 89.119(a) of this part at 
alaboratory within the United States;
    (3) The results of all emission tests;
    (4) The applicable deterioration factor assigned by EPA, if any;
    (5) The emission test results adjusted by the 
applicabledeterioration factor;
    (6) All information required under Sec. 89.610 relatedto 
maintenance, warranties, and labeling;
    (7) An attestation by the ICI that the ICI is responsible for 
thenonroad engine's compliance with federal emission 
requirements,regardless of whether the ICI owns the nonroad engine 
imported underthis section;
    (8) The applicable address and telephone number of the ICI, or 
thename, address, and telephone number of the person who the ICI 
prefersto receive EPA notification under Sec. 89.609(d);
    (9) An attestation by the ICI that all requirements ofSec. 89.607-
95 and Sec. 89.610 have beenmet; and
    (10) Such other information as is deemed necessary by 
theAdministrator.
    (c) EPA approval for final admission of a nonroad engine underthis 
section is presumed not to have been granted if any requirementof this 
subpart has not been met.
    (d) Except as provided in paragraph (c) of this section, EPAapproval 
for final admission of a nonroad engine under this section ispresumed to 
have been granted if the ICI does not receive oral orwritten notice from 
EPA to the contrary within 15 working days of thedate that the Engine 
Programs and Compliance Division of EPA receivesthe ICI's application 
under paragraph (b) of this section. Such EPAnotice of nonapproval may 
be made to any employee of the ICI. It isthe responsibility of the ICI 
to ensure that the Engine Programs andCompliance Division of EPA 
receives the application and to confirm thedate of receipt. During this 
15 working day hold period, the nonroadengine is stored at a location 
where the Administrator has reasonableaccess to the nonroad engine for 
the Administrator's inspection. Thestorage is to be within 50 miles of 
the ICI's testing facility toallow the Administrator reasonable access 
for inspection and testing.A storage facility not meeting this criterion 
must be approved inwriting by the Administrator prior to the submittal 
of the ICI'sapplication under paragraph (b) of this section.
    (e) EPA list of ICIs ineligible to import nonroad engines 
formodification/test. EPA maintains a current list of ICIs who havebeen 
determined to be ineligible to import nonroad engines under thissection. 
The determination of ineligibility is made in accordance withthe 
criteria and procedures in Sec. 89.612(e) of thissubpart.
    (f) Inspections. Prior to final admission, a nonroad engineimported 
under this section is subject to special inspections asdescribed in 
Sec. 89.606 with these additional provisions:
    (1) If, in the judgment of the Administrator, a significant numberof 
nonroad engines imported by an ICI fail to comply with 
emissionrequirements upon inspection or retest or if the ICI fails to 
complywith a provision of these regulations that pertain to nonroad 
enginesimported pursuant to Sec. 89.609, the ICI may be placed onthe 
EPA list of ICIs ineligible to import nonroad engines under thissection 
as specified in paragraph (e) of this section andSec. 89.612(e).

[[Page 153]]

    (2) An individual nonroad engine which fails a retest orinspection 
is to be repaired and retested, as applicable, todemonstrate compliance 
with emission requirements before finaladmission is granted by EPA.
    (3) Unless otherwise specified by EPA, the ICI bears the costs ofall 
retesting under this subsection, including transportation.
    (g) In-use inspection and testing. A nonroad engine importedunder 
this section may be tested or inspected by EPA at any timeduring the 
recall period specified in Sec. 89.104(b), inaccordance with Sec. 
89.608(a). If, in the judgment of theAdministrator, a significant number 
of properly maintained and usednonroad engines imported by the ICI 
pursuant to this section fail tomeet emission requirements, the name of 
the ICI may be placed on theEPA list of ICIs ineligible to import 
nonroad engines under themodification/test provision as specified in 
paragraph (e) of thissection and Sec. 89.612(e).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998]



Sec. 89.610  Maintenance instructions, warranties, emission labeling.

    The provisions of this section are applicable to all nonroadengines 
imported under the provisions of Sec. 89.605 orSec. 89.609.
    (a) Maintenance instructions. (1) The Independent CommercialImporter 
(ICI) must furnish to the purchaser, or to the owner of eachnonroad 
engine imported under Sec. 89.605 orSec. 89.609 of this subpart, 
written instructions for themaintenance and use of the nonroad engine by 
the purchaser or owner.Each application for final admission of a nonroad 
engine is to providean attestation that such instructions have been or 
will be (if theultimate purchaser is unknown) furnished to the purchaser 
or owner ofsuch nonroad engine at the time of sale or delivery. The ICI 
mustmaintain a record of having furnished such instructions.
    (2) For each nonroad engine imported under Sec. 89.609,a copy of 
the maintenance and use instructions is to be maintained ina file 
containing the records for that nonroad engine.
    (3) The maintenance and use instructions are not to 
containrequirements more restrictive than those set forth inSec. 89.109 
(Maintenance Instructions) and are to be insufficient detail and clarity 
that a mechanic of average training andability can maintain or repair 
the nonroad engine.
    (4) For each nonroad engine imported pursuant toSec. 89.605 or 
Sec. 89.609, ICIs must furnish witheach nonroad engine a list of the 
emission control parts, emission-related parts added by the ICI, and the 
emission control and emission-related parts furnished by the Original 
Engine Manufacturer (OEM).
    (5) The information required in this section to be furnished tothe 
ultimate purchaser or owner is to be copied and maintained in afile 
containing the records for that nonroad engine prior tosubmitting each 
application for final admission pursuant toSec. 89.605(a) or Sec. 
89.609(b).
    (b) Warranties. (1) ICIs must submit to the Engine Programsand 
Compliance Division of EPA sample copies (including revisions) ofany 
warranty documents required by this section prior to importingnonroad 
engines under this subpart.
    (2) ICIs must provide to nonroad engine owners emission 
warrantiesidentical to those required by sections 207(a) of the Act. 
Thewarranty period for each nonroad engine is to commence on the date 
thenonroad engine is delivered by the ICI to the ultimate purchaser 
orowner.
    (3) ICIs must provide warranty insurance coverage by a 
prepaidmandatory service insurance policy underwritten by an 
independentinsurance company. The policy is to:
    (i) Be subject to the approval of the Administrator if theinsurance 
coverage is less than the required warranty;
    (ii) At a minimum, provide coverage for emission-relatedcomponents 
installed or modified by the ICI and, to the maximum extentpossible, the 
emission-related components installed by the OEM;
    (iii) Be transferable to each successive owner for the 
periodsspecified in Sec. 89.104(c); and

[[Page 154]]

    (iv) Provide that in the absence of an ICI's facility 
beingreasonably available (that is, within 50 miles) for performance 
ofwarranty repairs, the warranty repairs may be performed anywhere.
    (4) ICIs must attest in each application for final admission thatthe 
warranty requirements have been met, that the mandatory insurancehas 
been paid and is in effect, and that certificates and statementsof the 
warranties have been or will be provided to the owner orultimate 
purchaser. A copy of the warranties and evidence that thewarranties are 
paid and in effect is to be maintained in a filecontaining the records 
for each nonroad engine prior to submittingeach application for final 
admission pursuant toSec. 89.605(a) or Sec. 89.609(b).
    (c) Emission labeling. (1) For each nonroad engine importedpursuant 
to Sec. 89.605 or Sec. 89.609, the ICImust affix a permanent legible 
label which identifies each nonroadengine and also satisfies the 
following:
    (i) The label meets all the requirements of Sec. 89.110and contains 
the following statement ``This nonroad engine wasoriginally produced in 
(month and year of original production). It hasbeen imported and 
modified by (ICI's name, address, and telephonenumber) to conform to 
United States emission regulations applicable tothe (year) model year.''
    (ii) If the nonroad engine is owned by the ICI at the time 
ofimportation, the label also states ``This nonroad engine iswarranted 
for five years or 3000 hours of operation from the date ofpurchase, 
whichever first occurs.''
    (iii) If the nonroad engine is not owned by the ICI at the time 
ofimportation, the label states ``This nonroad engine is warrantedfor 
five years or 3000 hours of operation from the date of release tothe 
owner, whichever first occurs.''
    (iv) For nonroad engines imported under Sec. 89.609, thelabel 
clearly states in bold letters that ``This nonroad enginehas not been 
manufactured under a certificate of conformity butconforms to United 
States emission regulations under amodification/test program.'' For all 
nonroad engines importedpursuant to Sec. 89.605 or Sec. 89.609, the 
labelcontains the vacuum hose routing diagram applicable to the 
nonroadengines.
    (2) As part of the application to the Administrator for 
finaladmission of each individual nonroad engine underSec. 89.609, the 
ICI must maintain a copy of the labels foreach nonroad engine in a file 
containing the records for that nonroadengine prior to submitting each 
application for final admission. ICIsimporting under Sec. 89.605 or 
Sec. 89.609 mustattest to compliance with the preceding labeling 
requirements of thissection in each application for final admission.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57021, Oct. 23, 1998]



Sec. 89.611  Exemptions and exclusions.

    (a) Individuals, as well as ICIs, are eligible for importingnonroad 
engines into the United States under the provisions of thissection, 
unless otherwise specified.
    (b) Notwithstanding other requirements of this subpart, a 
nonroadengine entitled to one of the temporary exemptions of this 
paragraphmay be conditionally admitted into the United States if prior 
writtenapproval for the conditional admission is obtained from 
theAdministrator. Conditional admission is to be under bond. 
TheAdministrator may request that the U.S. Customs Service require 
aspecific bond amount to ensure compliance with the requirements of 
theAct and this subpart. A written request for approval from 
theAdministrator is to contain the identification required inSec. 
89.604(a) (except for Sec. 89.604(a)(5)) andinformation that 
demonstrates that the importer is entitled to theexemption. 
Noncompliance with provisions of this section may result inthe 
forfeiture of the total amount of the bond or exportation of thenonroad 
engine. The following temporary exemptions are permitted bythis 
paragraph:
    (1) Exemption for repairs or alterations. A person mayconditionally 
import under bond a nonconforming engine solely forpurpose of repairs or 
alterations. The engine may not be operated inthe United States other 
than for the sole purpose of repair oralteration or shipment to the 
point of repair or alteration and to theport of export. It

[[Page 155]]

may not be sold or leased in the United Statesand is to be exported upon 
completion of the repairs or alterations.
    (2) Testing exemption. A test nonroad engine may beconditionally 
imported by a person subject to the requirements ofSec. 89.905. A test 
nonroad engine may be operated in theUnited States provided that the 
operation is an integral part of thetest. This exemption is limited to a 
period not exceeding one yearfrom the date of importation unless a 
request is made by theappropriate importer concerning the nonroad engine 
in accordance withSec. 89.905(f) for a subsequent one-year period.
    (3) Precertification exemption. A prototype nonroad enginefor use in 
applying to EPA for certification pursuant to this subpartmay be 
conditionally imported subject to applicable provisions ofSec. 89.906 
and the following requirements:
    (i) No more than one prototype nonroad engine for each enginefamily 
for which an importer is seeking certification is to beimported.
    (ii) The granting of precertification exemptions by theAdministrator 
is discretionary. Normally, no more than threeoutstanding 
precertification exemptions are allowed for each importer.No 
precertification exemption is allowed if the importer requestingthe 
exemption is in noncompliance with any requirement of this subpartuntil 
the noncompliance is corrected.
    (iii) Unless a certificate of conformity is issued for theprototype 
nonroad engine and the nonroad engine is finally admittedpursuant to the 
requirements of Sec. 89.605 within 180 daysfrom the date of entry, the 
total amount of the bond is to beforfeited or the nonroad engine 
exported unless an extension isgranted by the Administrator. A request 
for an extension is to be inwriting and received by the Administrator 
prior to the date that theprecertification exemption expires.
    (iv) Such precertification nonroad engine may not be operated inthe 
United States other than for the sole purpose of theprecertification 
exemption.
    (4) Display exemptions. (i) A nonroad engine intended solelyfor 
display may be conditionally imported subject to the requirementsof 
Sec. 89.907.
    (ii) A display nonroad engine may be imported by any person 
forpurposes related to a business or the public interest. Such 
purposesdo not include collections normally inaccessible or unavailable 
to thepublic on a daily basis, display of a nonroad engine at a 
dealership,private use, or other purpose that the Administrator 
determines is notappropriate for display exemptions. A display nonroad 
engine may notbe sold in the United States and may not be operated in 
the UnitedStates except for the operation incident and necessary to the 
displaypurpose.
    (iii) A temporary display exemption is granted for 12 months orfor 
the duration of the display purpose, whichever is shorter. Twoextensions 
of up to 12 months each are available upon approval by theAdministrator. 
In no circumstances, however, may the total period ofexemption exceed 36 
months. The U.S. Customs Service bonds a temporarydisplay exemption.
    (c) Notwithstanding any other requirement of this subpart, anonroad 
engine may be finally admitted into the United States underthis 
paragraph if prior written approval for such final admission isobtained 
from the Administrator. Conditional admission of thesenonroad engines 
under this subpart is not permitted for the purpose ofobtaining such 
written approval from the Administrator. A request forapproval is to 
contain the identification information required inSec. 89.604(a) 
(except for Sec. 89.604(a)(5)) andinformation that demonstrates that 
the importer is entitled to theexemption or exclusion. The following 
exemptions or exclusions arepermitted by this paragraph:
    (1) National security exemption. A nonroad engine may beimported 
under the national security exemption found atSec. 89.908.
    (2) Hardship exemption. The Administrator may exempt on acase-by-
case basis a nonroad engine from federal emission requirementsto 
accommodate unforeseen cases of extreme hardship or 
extraordinarycircumstances.
    (3) Exemption for nonroad engines identical to United 
Statescertified versions. (i)

[[Page 156]]

A person (including businesses) iseligible for importing a nonroad 
engine into the United States underthe provisions of this paragraph. An 
exemption will be granted if thenonroad engine:
    (A) is owned by the importer;
    (B) is not offered for importation for the purpose of resale; and
    (C) is proven to be identical, in all material respects, to anonroad 
engine certified by the Original Engine Manufacturer (OEM) forsale in 
the United States or is proven to have been modified to beidentical, in 
all material respects, to a nonroad engine certified bythe OEM for sale 
in the United States according to complete writteninstructions provided 
by the OEM's United States representative, orhis/her designee.
    (ii) Proof of conformity. (A) Documentation submittedpursuant to 
this section for the purpose of proving conformity ofindividual nonroad 
engines is to contain sufficiently organized dataor evidence 
demonstrating that the nonroad engine identified pursuantto Sec. 
89.604(a) is identical, in all material respects, toa nonroad engine 
identified in an OEM's application for certification.
    (B) If the documentation does not contain all the 
informationrequired by this part, or is not sufficiently organized, EPA 
notifiesthe importer of any areas of inadequacy, and that the 
documentationdoes not receive further consideration until the required 
informationor organization is provided.
    (C) If EPA determines that the documentation does not clearly 
orsufficiently demonstrate that a nonroad engine is eligible 
forimportation, EPA notifies the importer in writing.
    (D) If EPA determines that the documentation clearly andsufficiently 
demonstrates that a nonroad engine is eligible forimportation, EPA 
grants approval for importation and notifies theimporter in writing. 
Notwithstanding any other requirement of thissubpart, the notice 
constitutes approval for final admission into theUnited States.
    (d) Foreign diplomatic and military personnel may import 
anonconforming nonroad engine without bond. At the time of admission,the 
importer must submit to the Administrator the written reportrequired in 
Sec. 89.604(a) (except for information requiredby Sec. 89.604(a)(5)) 
and a statement from the U.S.Department of State confirming 
qualification for this exemption. Thenonroad engine may not be sold in 
the United States and must beexported if the individual's diplomatic 
status is no longerapplicable, as determined by the Department of State, 
unlesssubsequently brought into conformity in accordance withSec. Sec. 
89.605, 89.609, or 89.611(c)(3).
    (e) Competition exclusion. A nonconforming engine may beimported by 
any person provided the importer demonstrates to theAdministrator that 
the engine is used to propel a vehicle used solelyfor competition and 
obtains prior written approval from theAdministrator. A nonconforming 
engine imported pursuant to thisparagraph may not be operated in the 
United States except for thatoperation incident and necessary for the 
competition purpose, unlesssubsequently brought into conformity with 
United States emissionrequirements in accordance with Sec. Sec. 89.605, 
89.609,or 89.611(c)(3).
    (f) Exclusions/exemptions based on date of originalmanufacture. (1) 
Notwithstanding any other requirements of thissubpart, the following 
nonroad engines are excluded, as determined bythe engine's gross power 
output, from the requirements of the Act inaccordance with section 213 
of the Act and may be imported by anyperson:
    (i) All nonroad engines greater than or equal to 37 kW but lessthan 
75 kW originally manufactured prior to January 1, 1998.
    (ii) All nonroad engines greater than or equal to 75 kW but lessthan 
130 kW originally manufactured prior to January 1, 1997.
    (iii) All nonroad engines greater than or equal to 130 kW but 
lessthan or equal to 560 kW originally manufactured prior to January 
1,1996.
    (iv) All nonroad engines greater than 560 kW originallymanufactured 
prior to January 1, 2000.
    (v) All nonroad engines greater than or equal to 19 kW but lessthan 
37 kW originally manufactured prior to January 1, 1999.

[[Page 157]]

    (vi) All nonroad engines less than 19 kW originallymanufactured 
prior to January 1, 2000.
    (2) Notwithstanding other requirements of this subpart, a 
nonroadengine not subject to an exclusion under Sec. 89.611(f)(1)but 
greater than 20 original production (OP) years old is entitled toan 
exemption from the requirements of the Act, provided that it hasnot been 
modified in those 20 OP years and it is imported into theUnited States 
by an ICI. At the time of admission, the ICI must submitto the 
Administrator the written report required inSec. 89.604(a) (except for 
information required bySec. 89.604(a)(5)).
    (g) An application for exemption and exclusion provided for 
inparagraphs (b), (c), and (e) of this section is to be mailed to: 
U.S.Environmental Protection Agency, Office of Mobile Sources, 
EnginePrograms and Compliance Division (6405-J), 1200 PennsylvaniaAve., 
NW., Washington, DC 20460, Attention: Imports.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR56996, 
57022, Oct. 23, 1998; 70 FR 40446, July 13, 2005; 72 FR 53129,Sept. 18, 
2007]



Sec. 89.612  Prohibited acts; penalties.

    (a) The importation of a nonroad engine, including a nonroadengine 
incorporated into a nonroad vehicle or nonroad equipment, whichis not 
covered by a certificate of conformity other than in accordancewith this 
subpart and the entry regulations of the U.S. CustomsService is 
prohibited. Failure to comply with this section is aviolation of section 
213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period 
ofconditional admission, the importer of a nonroad engine may not:
    (1) Register, license, or operate the nonroad engine in the 
UnitedStates;
    (2) Sell or offer the nonroad engine for sale;
    (3) Store the nonroad engine on the premises of a dealer 
(unlessapproved by the Administrator), owner, or purchaser;
    (4) Relinquish control of the nonroad engine to the owner 
orpurchaser; or
    (5) Cause a nonroad engine to be altered in any manner subsequentto 
modification and testing, if applicable, for which an applicationfor 
final admission is based and submitted to the Administrator,unless 
approved in advance by the Administrator.
    (c) A nonroad engine conditionally admitted pursuant toSec. 89.604 
and not granted final admission within 120 daysof such conditional 
admission, or within such additional time as theAdministrator and the 
U.S. Customs Service may allow, is deemed to beunlawfully imported into 
the United States in violation of section213(d) and section 203 of the 
Act, unless the nonroad engine has beendelivered to the U.S. Customs 
Service for export or other dispositionunder applicable Customs laws and 
regulations. A nonroad engine not sodelivered is subject to seizure by 
the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of 
theAct is subject to the provisions of section 209 of the Act and is 
alsosubject to a civil penalty under section 205 of the Act of not 
morethan $32,500 for each nonroad engine subject to the violation.
    In addition to the penalty provided in the Act, where applicable,a 
person or entity who imports an engine under the exemptionprovisions of 
Sec. 89.611(b) and, who fails to deliver thenonroad engine to the U.S. 
Customs Service is liable for liquidateddamages in the amount of the 
bond required by applicable Customs lawsand regulations. The maximum 
penalty value listed in this paragraph(d) is shown for calendar year 
2004. Maximum penalty limits for lateryears may be adjusted based on the 
Consumer Price Index. The specificregulatory provisions for changing the 
maximum penalties, published in40 CFR part 19, reference the applicable 
U.S. Code citation on whichthe prohibited action is based.
    (e)(1) An ICI whose nonroad engines imported underSec. 89.605 or 
Sec. 89.609 fail to conform tofederal emission requirements after 
modification and/or testing or whofails to comply with applicable 
provisions of this subpart, may, inaddition to any other applicable 
sanctions and penalties, be subjectto any, or all, of the following 
sanctions:
    (i) The ICI's currently held certificates of conformity may 
berevoked or suspended;

[[Page 158]]

    (ii) The ICI may be deemed ineligible to apply for newcertificates 
of conformity for up to three years; and
    (iii) The ICI may be deemed ineligible to import nonroad 
enginesunder Sec. 89.609 in the future and be placed on a list ofICIs 
ineligible to import nonroad engines under the provisions ofSec. 
89.609.
    (2) Grounds for the actions described in paragraph (e)(1) of 
thissection include, but are not limited to, the following:
    (i) Action or inaction by the ICI or the laboratory performing 
theemission test on behalf of the ICI, which results in 
fraudulent,deceitful, or grossly inaccurate representation of any fact 
orcondition which affects a nonroad engine's eligibility for admissionto 
the United States under this subpart;
    (ii) Failure of a significant number of imported nonroad enginesto 
comply with federal emission requirements upon EPA inspection orretest; 
or
    (iii) Failure by an ICI to comply with requirements of thissubpart.
    (3) The following procedures govern any decision to suspend,revoke, 
or refuse to issue certificates of conformity under thissubpart:
    (i) When grounds appear to exist for the actions described 
inparagraph (e)(1) of this section, the Administrator must notify theICI 
in writing of any intended suspension or revocation of acertificate of 
conformity, proposed ineligibility to apply for newcertificates of 
conformity, or intended suspension of eligibility toconduct 
modification/testing under Sec. 89.609, and thegrounds for such action.
    (ii) Except as provided by paragraph (e)(3)(iv), the ICI must 
takethe following actions before the Administrator will 
considerwithdrawing notice of intent to suspend or revoke the 
ICI'scertificate of conformity or to deem the ICI ineligible to apply 
fornew certification or to deem the ICI ineligible to 
performmodification/testing under Sec. 89.609:
    (A) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the nonroad engine, describes 
theproposed remedy, including a description of any proposed 
qualitycontrol and/or quality assurance measures to be taken by the ICI 
toprevent the future occurrence of the problem, and states the date 
onwhich the remedies are to be implemented or
    (B) Demonstrate that the nonroad engine does in fact comply 
withapplicable regulations in this chapter by retesting, if 
applicable,the nonroad engine in accordance with the applicable emission 
testspecified in subpart E of this part.
    (iii) An ICI may request, within 15 calendar days of 
theAdministrator's notice of intent to suspend or revoke the 
ICI'scertificate of conformity or to deem the ICI ineligible to apply 
fornew certificates or to deem the ICI ineligible to 
performmodification/testing under Sec. 89.609, that theAdministrator 
grant such ICI a hearing:
    (A) As to whether the tests, if applicable, have been 
properlyconducted,
    (B) As to any substantial factual issue raised by theAdministrator's 
proposed action.
    (iv) If, after the Administrator notifies an ICI of the intent 
tosuspend or revoke the ICI's certificate of conformity or to deem 
theICI ineligible to apply for new certificates or to deem the 
ICIineligible to perform modification/testing under Sec. 89.609and 
prior to any final suspension or revocation, the ICI demonstratesto the 
Administrator's satisfaction that the decision to initiatesuspension or 
revocation of the certificate of conformity oreligibility to perform 
modification/testing underSec. 89.609 was based on erroneous 
information, theAdministrator will withdraw the notice of intent.
    (4) Hearings on suspensions and revocations of certificates 
ofconformity or of eligibility to apply for new certificates or 
ofeligibility to perform modification/testing underSec. 89.609 will be 
held in accordance with the following:
    (i) The procedures prescribed by this section will apply wheneveran 
ICI requests a hearing pursuant to paragraph (e)(3)(iii) of thissection.
    (ii) Hearings under paragraph (e)(3)(iii) will be held inaccordance 
with the procedures outlined in Sec. 86.614 ofthis chapter, where 
applicable, provided that whereSec. 86.612 is referred to in Sec. 
86.614:Sec. 86.612(a) is replaced by Sec. 89.612(e)(2);and Sec. 
86.612(i) is replaced by Sec. 89.612(e)(3)(iii).

[[Page 159]]

    (5) When a hearing is requested under this section and itclearly 
appears from the data or other information contained in therequest for a 
hearing, or submitted at the hearing, that no genuineand substantial 
question of fact exists with respect to the issue ofwhether the ICI 
failed to comply with this subpart, the Administratorwill enter an order 
denying the request for a hearing, or terminatingthe hearing, and 
suspending or revoking the certificate of conformityand/or deeming the 
ICI ineligible to apply for new certificates or toperform modification/
testing under Sec. 89.609.
    (6) In lieu of requesting a hearing under paragraph (e)(3)(iii) 
ofthis section, an ICI may respond in writing to EPA's charges in 
thenotice of intent to suspend or revoke. An ICI's written response 
mustbe received by EPA within 30 days of the date of EPA's notice 
ofintent. No final decision to suspend or revoke will be made beforethat 
time.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998, 
as amended at 70 FR 40446, July 13, 2005]



Sec. 89.613  Treatment of confidential information.

    The provisions for treatment of confidential information asdescribed 
in Sec. 89.7 apply.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct.23, 1998]



Sec. 89.614  Importation of partially complete engines.

    The provisions of 40 CFR 1068.330 apply for importation ofpartially 
complete engines, or engines that will be modified forapplications other 
than those covered by this part 89.

[70 FR 40447, July 13, 2005]



                      Subpart H_Recall Regulations



Sec. 89.701  Applicability.

    The requirements of subpart H are applicable to all nonroadengines 
subject to the provisions of subpart A of part 89.



Sec. 89.702  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.703  Applicability of part 85, subpart S.

    (a) Nonroad engines subject to provisions of subpart B of thispart 
are subject to recall regulations specified in part 85, subpart Sof this 
title, except for the items set forth in this section.
    (b) Reference to section 214 of the Clean Air Act inSec. 85.1801 is 
replaced by reference to section 216 of theClean Air Act.
    (c) Reference to section 202 of the Act inSec. 85.1802(a) is 
replaced by reference to section 213 ofthe Act.
    (d) Reference to ``family particulate emission limits asdefined in 
Part 86 promulgated under section 202 of the Act'' inSec. 85.1803(a) 
and Sec. 85.1805(a)(1) is replacedby reference to family emission 
limits as defined in part 89promulgated under section 213 of the Act.
    (e) Reference to ``vehicles or engines'' throughoutthe subpart is 
replaced by reference to ``engines.''



            Subpart I_Emission Defect Reporting Requirements



Sec. 89.801  Applicability.

    The requirements of subpart I are applicable to all nonroadengines 
subject to the provisions of subpart A of part 89. Therequirement to 
report emission-related defects affecting a given classor category of 
engines remains applicable for five years from the endof the model year 
in which such engines were manufactured.



Sec. 89.802  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.803  Applicability of part 85, subpart T.

    (a) Nonroad engines subject to provisions of subpart B of thispart 
are subject to emission defect reporting requirements specifiedin part 
85, subpart T of this chapter, except for the items set forthin this 
section.
    (b) Section 85.1901 is replaced by Sec. 89.801.
    (c) Reference to the Clean Air Act, 42 U.S.C. 1857 inSec. 
85.1902(a) is replaced by reference to the Clean AirAct, 42 U.S.C. 7401.

[[Page 160]]

    (d) Reference to the ``approved Application forCertification 
required by 40 CFR 86.077-22 and like provisionsof Part 85 and Part 86 
of Title 40 of the Code of FederalRegulations'' in Sec. 85.1902(b) is 
replaced byreference to the approved application for certification 
required bySec. 89.115 and like provisions of part 89 of this chapter.
    (e) Reference to section 202(d) of the Act inSec. 85.1902(c) is 
replaced by reference to section 202(d)and section 213 of the Act.
    (f) Reference to section 214 of the Act in Sec. 85.1902(e) and (f) 
is replaced by reference to section 216 of the Act.
    (g) Reference to ``vehicles or engines'' throughoutthe subpart is 
replaced by reference to ``engines.''



                     Subpart J_Exemption Provisions



Sec. 89.901  Applicability.

    The requirements of subpart J are applicable to all nonroadengines 
subject to the provisions of subpart A of part 89.



Sec. 89.902  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Exemption means exemption from the prohibitions ofSec. 89.1006.
    Export exemption means an exemption granted underSec. 89.1004(b) 
for the purpose of exporting new nonroadengines.
    National security exemption means an exemption which may begranted 
under Sec. 89.1004(b) for the purpose of nationalsecurity.
    Manufacturer-owned nonroad engine means an uncertifiednonroad engine 
owned and controlled by a nonroad engine manufacturerand used in a 
manner not involving lease or sale by itself or in avehicle or piece of 
equipment employed from year to year in theordinary course of business 
for product development, production methodassessment, and market 
promotion purposes.
    Testing exemption means an exemption which may be grantedunder Sec. 
89.1004(b) for the purpose of researchinvestigations, studies, 
demonstrations or training, but not includingnational security.



Sec. 89.903  Application of section 216(10) of the Act.

    (a) For the purpose of determining the applicability of 
section216(10) of the Act, an internal combustion engine (including the 
fuelsystem) that is not used in a motor vehicle is deemed a nonroad 
engineif it meets the definition in subpart A of this part.
    (b) EPA will maintain a list of nonroad engines that have 
beendetermined to be excluded because they are used solely 
forcompetition. This list will be available to the public and may 
beobtained by writing to the following address: Chief, 
SelectiveEnforcement Auditing Section, Engine Programs and Compliance 
Division(6405-J), Environmental Protection Agency, 1200 
PennsylvaniaAve., NW., Washington, DC 20460.
    (c) Upon written request, EPA will make written determinations asto 
whether certain engines are or are not nonroad engines. Enginesthat are 
determined not to be nonroad engines are excluded fromregulations under 
this part.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct.23, 1998]



Sec. 89.904  Who may request an exemption.

    (a) Any person may request a testing exemption underSec. 89.905.
    (b) Any nonroad engine manufacturer may request a nationalsecurity 
exemption under Sec. 89.908.
    (c) For nonroad engine manufacturers, nonroad engines 
manufacturedfor export purposes are exempt without application, subject 
to theprovisions of Sec. 89.909.
    (d) For eligible manufacturers, as determined bySec. 89.906, 
manufacturer-owned nonroad engines are exemptwithout application, 
subject to the provisions ofSec. 89.906.
    (e) For any person, display nonroad engines are exempt 
withoutapplication, subject to the provisions of Sec. 89.907.



Sec. 89.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate 
thefollowing:

[[Page 161]]

    (1) That the proposed test program has a purpose whichconstitutes an 
appropriate basis for an exemption in accordance withthis section;
    (2) That the proposed test program necessitates the granting of 
anexemption;
    (3) That the proposed test program exhibits reasonableness inscope; 
and
    (4) That the proposed test program exhibits a degree of 
controlconsonant with the purpose of the test program and EPA's 
monitoringrequirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describewhat 
constitutes a sufficient demonstration for each of the fouridentified 
elements.
    (b) With respect to the purpose of the proposed test program, 
anappropriate purpose would be research, investigations, 
studies,demonstrations, or training, but not national security. A 
concisestatement of purpose is a required item of information.
    (c) With respect to the necessity that an exemption be 
granted,necessity arises from an inability to achieve the stated purpose 
in apracticable manner without performing or causing to be performed 
oneor more of the prohibited acts under Sec. 89.1003. Inappropriate 
circumstances, time constraints may be a sufficient basisfor necessity, 
but the cost of certification alone, in the absence ofextraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit 
aduration of reasonable length and affect a reasonable number ofengines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration, and
    (2) The maximum number of nonroad engines involved.
    (e) With respect to control, the test program must 
incorporateprocedures consistent with the purpose of the test and be 
capable ofaffording EPA monitoring capability. As a minimum, required 
items ofinformation include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The time or mileage duration of the test;
    (4) The ownership arrangement with regard to the engines involvedin 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will 
beidentified, recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new nonroad engines may request a 
testingexemption to cover nonroad engines intended for use in test 
programsplanned or anticipated over the course of a subsequent one-
yearperiod. Unless otherwise required by the Director, Engine Programs 
andCompliance Division, a manufacturer requesting such an exemption 
needonly furnish the information required by paragraphs (a)(1) and 
(d)(2)of this section along with a description of the record-keeping 
andcontrol procedures that will be employed to assure that the 
enginesare used for purposes consistent with paragraph (a) of this 
section.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct.23, 1998]



Sec. 89.906  Manufacturer-owned exemption and precertification exemption.

    (a) Except as provided in paragraph (b) of this section, 
anymanufacturer-owned nonroad engine, as defined bySec. 89.902, is 
exempt from Sec. 89.1003, withoutapplication, if the manufacturer 
complies with the following terms andconditions:
    (1) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed information on 
eachexempted engine:
    (i) Engine identification number,
    (ii) Use of the engine on exempt status and
    (iii) Final disposition of any engine removed from exempt status;and
    (2) The manufacturer must provide right of entry and access tothese 
records to EPA authorized representatives as outlined inSec. 89.506.
    (3) Unless the requirement is waived or an alternate procedure 
isapproved by the Director, Engine Programs and Compliance Division, 
themanufacturer must permanently affix a label to each

[[Page 162]]

nonroadengine on exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine,
    (ii) Be attached in such a manner that cannot be removed 
withoutdestruction or defacement,
    (iii) State in the English language and in block letters andnumerals 
of a color that contrasts with the background of the label,the following 
information:
    (A) The label heading ``Emission ControlInformation;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and modelyear 
of engine; or person of office to be contacted for furtherinformation 
about the engine;
    (D) The statement ``This nonroad engine is exempt from 
theprohibitions of 40 CFR 89.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents 
amanufacturer from including any other information it desires on 
thelabel.
    (b) Any independent commercial importer that desires 
aprecertification exemption pursuant to Sec. 89.611(b)(3) andis in the 
business of importing, modifying, or testing uncertifiednonroad engines 
for resale under the provisions of subpart G of thispart, must apply to 
the Director, Engine Programs and ComplianceDivision. The Director may 
require such independent commercialimporter to submit information 
regarding the general nature of thefleet activities, the number of 
nonroad engines involved, and ademonstration that adequate record-
keeping procedures for controlpurposes will be employed.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct.23, 1998]



Sec. 89.907  Display exemption.

    Where an uncertified nonroad engine is a display engine to be 
usedsolely for display purposes, will only be operated incident 
andnecessary to the display purpose, and will not be sold unless 
anapplicable certificate of conformity has been received or the 
enginehas been finally admitted pursuant to subpart G of this part, 
norequest for exemption of the engine is necessary.



Sec. 89.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, whichis 
used in a vehicle that exhibits substantial features 
ordinarilyassociated with military combat such as armor and/or 
permanentlyaffixed weaponry and which will be owned and/or used by an 
agency ofthe federal government with responsibility for national 
defense, willbe considered exempt from these regulations for purposes of 
nationalsecurity. No request for exemption is necessary.
    (2) Manufacturers may request a national security exemption forany 
nonroad engine, otherwise subject to this part, which does notmeet the 
conditions described in paragraph (a)(1) of this section. Amanufacturer 
requesting a national security exemption must state thepurpose for which 
the exemption is required and the request must beendorsed by an agency 
of the federal government charged withresponsibility for national 
defense.
    (b) EPA will maintain a list of models of nonroad engines (and 
thevehicles which use them) that have been granted a national 
securityexemption under paragraph (a)(2) of this section. This list will 
beavailable to the public and may be obtained by writing to thefollowing 
address: Group Manager, Engine Compliance Programs Group,Engine Programs 
and Compliance Division (6403J) EnvironmentalProtection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Manufacturers must add a legible label, written in blockletters 
in English, to each engine exempted under this section. Thelabel must be 
permanently secured to a readily visible part of theengine needed for 
normal operation and not normally requiringreplacement, such as the 
engine block. This label must include atleast the following items:
    (1) The label heading ``EMISSION CONTROLINFORMATION''.
    (2) Your corporate name and trademark.
    (3) Engine displacement, engine family identification 
(asapplicable), and model year of the engine or whom to contact 
forfurther information.

[[Page 163]]

    (4) The statement ``THIS ENGINE HAS AN EXEMPTION FORNATIONAL 
SECURITY UNDER 40 CFR 89.908.''.

[61 FR 52102, Oct. 4, 1996, as amended at 69 FR 39213, June29, 2004]



Sec. 89.909  Export exemptions.

    (a) A new nonroad engine intended solely for export, and solabeled 
or tagged on the outside of the container and on the engineitself, is 
subject to the provisions of Sec. 89.1003, unlessthe importing country 
has new nonroad engine emission standards whichdiffer from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a 
countryhaving no standards, whatsoever, is deemed to be a country 
havingemission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have inforce 
nonroad emission standards identical to EPA standards and haveso 
notified EPA. This list may be obtained by writing to the 
followingaddress: Chief, Selective Enforcement Auditing Section, 
ManufacturersOperations Division (6405-J), Environmental Protection 
Agency,1200 Pennsylvania Ave., NW., Washington, DC 20460. New nonroad 
enginesexported to such countries must comply with EPA 
certificationregulations.
    (d) It is a condition of any exemption for the purpose of 
exportunder paragraph (a) of this section, that such exemption is void 
abinitio with respect to a new nonroad engine intended solely forexport, 
where such nonroad engine is sold, or offered for sale, to anultimate 
purchaser or otherwise distributed or introduced intocommerce in the 
United States for purposes other than export.



Sec. 89.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request 
madepursuant to Sec. 89.905 or Sec. 89.908, EPAdetermines it is 
appropriate to grant such an exemption, a memorandumof exemption is to 
be prepared and submitted to the person requestingthe exemption. The 
memorandum is to set forth the basis for theexemption, its scope, and 
such terms and conditions as are deemednecessary. Such terms and 
conditions generally include, but are notlimited to, agreements by the 
applicant to conduct the exempt activityin the manner described to EPA, 
create and maintain adequate recordsaccessible to EPA at reasonable 
times, employ labels for the exemptengines setting forth the nature of 
the exemption, take appropriatemeasures to assure that the terms of the 
exemption are met, and adviseEPA of the termination of the activity and 
the ultimate disposition ofthe engines.
    (b) Any exemption granted pursuant to paragraph (a) of thissection 
is deemed to cover any subject engine only to the extent thatthe 
specified terms and conditions are complied with. A breach of anyterm or 
condition causes the exemption to be void ab initio withrespect to any 
engine. Consequently, the causing or the performing ofan act prohibited 
under Sec. 89.1003( a)(1) or (a)(3), otherthan in strict conformity 
with all terms and conditions of thisexemption, renders the person to 
whom the exemption is granted, andany other person to whom the 
provisions of Sec. 89.1003(a)are applicable, liable to suit under 
sections 204 and 205 of the Act.
    (c) Manufacturers may ask EPA to apply the provisions of 40 
CFR1068.201(i) to engines exempted or excluded under this subpart.

[59 FR 31335, June 17, 1994, as amended at 69 FR 39213, June29, 2004]



Sec. 89.911  Submission of exemption requests.

    Requests for exemption or further information concerningexemptions 
and/or the exemption request review procedure should beaddressed to: 
Chief, Selective Enforcement Auditing Section, EnginePrograms and 
Compliance Division (6405-J), EnvironmentalProtection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.

[63 FR 57022, Oct. 23, 1998]



Sec. 89.912  Treatment of confidential information.

    The provisions for treatment of confidential information asdescribed 
in Sec. 89.7 apply.

[[Page 164]]



Sec. 89.913  What provisions apply to engines certified under the motor-vehicleprogram?

    You may use the provisions of 40 CFR 1039.605 to introduce 
newnonroad engines into commerce if they are already certified to 
therequirements that apply to compression-ignition engines under 40 
CFRparts 85 and 86. However, when using the provisions of 40 
CFR1039.605, references to this part 89 or sections in this part shall 
beused instead of references to 40 CFR part 1039 or sections in 
thatpart.

[70 FR 40447, July 13, 2005]



Sec. 89.914  What provisions apply to vehicles certified under the motor-vehicle program?

    You may use the provisions of 40 CFR 1039.610 to introduce 
newnonroad engines or equipment into commerce if the vehicle is 
alreadycertified to the requirements that apply under 40 CFR parts 85 
and 86.However, when using the provisions of 40 CFR 1039.610, references 
tothis part 89 or sections in this part shall be used instead 
ofreferences to 40 CFR part 1039 or sections in that part.

[70 FR 40447, July 13, 2005]



Sec. 89.915  Staged-assembly exemption.

    You may ask us to provide a temporary exemption to allow you 
tocomplete production of your engines at different facilities, as longas 
you maintain control of the engines until they are in theircertified 
configuration. We may require you to take specific steps toensure that 
such engines are in their certified configuration beforereaching the 
ultimate purchaser. You may request an exemption underthis section in 
your application for certification, or in a separatesubmission.

[70 FR 40447, July 13, 2005]



Sec. 89.916  Emergency-vessel exemption for marine engines below 37 kW.

    The prohibitions in Sec. 89.1003(a)(1) do not apply tonew marine 
engines used in lifeboats and rescue boats as described in40 CFR 94.914.

[73 FR 37194, June 30, 2008]

    Effective Date Note: At 73 FR 37194, June 30, 2008,Sec. 89.916 was 
added, effective July 7, 2008.



       Subpart K_General Enforcement Provisions and ProhibitedActs



Sec. 89.1001  Applicability.

    The requirements of subpart K are applicable to all nonroadengines 
subject to the provisions of subpart A of part 89, and to allnonroad 
vehicles and equipment that contain such nonroad engines.



Sec. 89.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.1003  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new nonroad 
engines,vehicles, or equipment for distribution in commerce, the sale, 
or theoffering for sale, or the introduction, or delivery for 
introduction,into commerce, of any new nonroad engine manufactured after 
theapplicable effective date under this part, or any nonroad vehicle 
orequipment containing such engine, unless such engine is covered by 
acertificate of conformity issued (and in effect) under regulationsfound 
in this part.
    (ii) In the case of any person, except as provided in subpart G 
ofthis part, the importation into the United States of any new 
nonroadengine manufactured after the applicable effective date under 
thispart, or any nonroad vehicle or equipment containing such 
engine,unless such engine is covered by a certificate of conformity 
issued(and in effect) under regulations found in this part.
    (2)(i) For a person to fail or refuse to permit access to orcopying 
of records or to fail to make reports or provide informationrequired 
under Sec. 89.1004.
    (ii) For a person to fail or refuse to permit entry, testing, 
orinspection authorized under Sec. Sec. 89.129, 89.506 or89.1004.
    (iii) For a person to fail or refuse to perform tests, or to 
havetests performed as required under Sec. Sec. 89.119 or89.1004.

[[Page 165]]

    (iv) For a person to fail to establish or maintain records 
asrequired under Sec. 89.1004.
    (3)(i) For a person to remove or render inoperative a device 
orelement of design installed on or in a nonroad engine, vehicle 
orequipment in compliance with regulations under this part prior to 
itssale and delivery to the ultimate purchaser, or for a person 
knowinglyto remove or render inoperative such a device or element of 
designafter the sale and delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, orinstall, 
a part or component intended for use with, or as part of, anonroad 
engine, vehicle or equipment, where a principal effect of thepart or 
component is to bypass, defeat, or render inoperative a deviceor element 
of design installed on or in a nonroad engine in compliancewith 
regulations issued under this part, and where the person knows orshould 
know that the part or component is being offered for sale orinstalled 
for this use or put to such use; or
    (iii) For a person to deviate from the provisions ofSec. 89.130 
when rebuilding an engine (or rebuilding aportion of an engine or engine 
system). Such a deviation violatesparagraph (a)(3)(i) of this section.
    (4) For a manufacturer of a new nonroad engine subject tostandards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver intocommerce, a 
nonroad engine unless the manufacturer has complied withthe requirements 
of Sec. 89.1007.
    (ii) To sell, offer for sale, or introduce or deliver intocommerce, 
a nonroad engine unless a label or tag is affixed to theengine in 
accordance with Sec. 89.110.
    (iii) To fail or refuse to comply with the requirements ofSec. 
89.1008.
    (iv) Except as provided in Sec. 89.109, to providedirectly or 
indirectly in any communication to the ultimate purchaseror a subsequent 
purchaser that the coverage of a warranty under theAct is conditioned 
upon use of a part, component, or systemmanufactured by the manufacturer 
or a person acting for themanufacturer or under its control, or 
conditioned upon serviceperformed by such persons.
    (v) To fail or refuse to comply with the terms and conditions ofthe 
warranty under Sec. 89.1007.
    (5) For a person to circumvent or attempt to circumvent theresidence 
time requirements of paragraph (2)(iii) of the nonroadengine definition 
in Sec. 89.2.
    (6) For a manufacturer of nonroad vehicles or equipment todistribute 
in commerce, sell, offer for sale, or introduce intocommerce a nonroad 
vehicle or piece of equipment which contains anengine not covered by a 
certificate of conformity, except as otherwiseallowed by this part.
    (b) For the purposes of enforcement of this part, the 
followingapply:
    (1) Nothing in paragraph (a)(3) of this section is to be construedto 
require the use of manufacturer parts in maintaining or repairing 
anonroad engine.
    (2) Actions for the purpose of repair or replacement of a deviceor 
element of design or any other item are not considered prohibitedacts 
under Sec. 89.1003(a) if the action is a necessary andtemporary 
procedure, the device or element is replaced upon completionof the 
procedure, and the action results in the proper functioning ofthe device 
or element of design.
    (3) Actions for the purpose of a conversion of a nonroad enginefor 
use of a clean alternative fuel (as defined in Title II of theAct) are 
not considered prohibited acts underSec. 89.1003(a) if:
    (i) the vehicle complies with the applicable standard whenoperating 
on the alternative fuel, and the device or element isreplaced upon 
completion of the conversion procedure, and
    (ii) in the case of engines converted to dual fuel or flexibleuse, 
the action results in proper functioning of the device or elementwhen 
the nonroad engine operates on conventional fuel.
    (4) Certified nonroad engines shall be used in all vehicles 
andequipment manufactured on or after the applicable model years inSec. 
89.112 that are self-propelled, portable,transportable, or are intended 
to be propelled while performing theirfunction, unless the manufacturer 
of the vehicle or equipment

[[Page 166]]

canprove that the vehicle or equipment will be used in a 
mannerconsistent with paragraph (2) of the definition of nonroad engine 
inSec. 89.2. After the date on which a new standard takeseffect, 
nonroad vehicle and equipment manufacturers may continue touse nonroad 
engines built prior to this date that are not certified tothe standard 
until inventories of those engines are depleted; however,stockpiling of 
such nonroad engines will be considered a violation ofthis section.
    (5)--(6) [Reserved]
    (7) A new nonroad engine intended solely to replace a nonroadengine 
in a piece of nonroad equipment, where the engine requiringreplacement 
is not certified or is certified to emission standardsthat are less 
stringent than those in effect when the replacementengine is built, 
shall not be subject to the prohibitions of paragraph(a)(1) of this 
section or to the requirements of Sec. 89.105and paragraph (b)(4) of 
this section, provided that:
    (i) The engine manufacturer has ascertained that no engineproduced 
by itself or by the manufacturer of the engine that is beingreplaced, if 
different, and certified to the requirements of thissubpart, is 
available with the appropriate physical or performancecharacteristics to 
repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership 
andpossession of the engine being replaced or confirms that the 
enginehas been destroyed; and
    (iii) If the engine being replaced was not certified to anyemission 
standards under this part, the replacement engine must have apermanent 
label with your corporate name and trademark and thefollowing language, 
or similar alternate language approved by theAdministrator: THIS ENGINE 
DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FORANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE FOR AN ENGINEMANUFACTURED PRIOR TO JANUARY 
1 [INSERT APPROPRIATE YEAR] IS AVIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTY.
    (iv) If the engine being replaced was certified to emissionstandards 
less stringent than those in effect when you produce thereplacement 
engine, the replacement engine must have a permanent labelwith your 
corporate name and trademark and the following language, orsimilar 
alternate language approved by the Administrator: THIS ENGINECOMPLIES 
WITH U.S. EPA NONROAD EMISSION REQUIREMENTS FOR [Insertappropriate year 
reflecting when the Tier 1 or Tier 2 standards forthe replaced engine 
began to apply] ENGINES UNDER 40 CFR 89.1003(b)(7). SELLING OR 
INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN TOREPLACE A NONROAD 
ENGINE BUILT BEFORE JANUARY 1, [Insert appropriateyear reflecting when 
the next tier of emission standards began toapply] MAY BE A VIOLATION OF 
FEDERAL LAW SUBJECT TO CIVIL PENALTY.
    (v) Where the replacement engine is intended to replace an 
enginethat is certified to emission standards that are less stringent 
thanthose in effect when the replacement engine is built, the 
replacementengine shall be identical in all material respects to a 
certifiedconfiguration of the same or later model year as the engine 
beingreplaced; and
    (vi) Engines sold pursuant to the provisions of this paragraph 
(b)(7) will neither generate nor use emission credits and will not 
bepart of any accounting under the averaging, banking and 
tradingprogram.
    (vii) In cases where an engine is to be imported for 
replacementpurposes under the provisions of this paragraph (b)(7), the 
term``engine manufacturer'' shall not apply to an individualor other 
entity that does not possess a current Certificate ofConformity issued 
by EPA under this part; and
    (viii) The provisions of this section may not be used tocircumvent 
emission standards that apply to new engines under thispart.

[59 FR 31335, June 17, 1994, as amended at 61 FR 58106, Nov.12, 1996; 63 
FR 57022, Oct. 23, 1998; 70 FR 40447, July 13, 2005]



Sec. 89.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Everymanufacturer of new 
nonroad

[[Page 167]]

engines and other persons subject tothe requirements of this part must 
establish and maintain records,perform tests where such testing is not 
otherwise reasonably availableunder this part, make reports and provide 
information theAdministrator may reasonably require to determine whether 
themanufacturer or other person has acted or is acting in compliance 
withthis part or to otherwise carry out the provisions of this part, 
andmust, upon request of an officer or employee duly designated by 
theAdministrator, permit the officer or employee at reasonable times 
tohave access to and copy such records. The manufacturer shall comply 
inall respects with the requirements of subpart I of this part.
    (2) For purposes of enforcement of this part, an officer oremployee 
duly designated by the Administrator, upon presentingappropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of 
themanufacturer, or of any person whom the manufacturer engaged 
toperform any activity required under paragraph (a) (1) of this 
section,for the purposes of inspecting or observing any activity 
conductedpursuant to paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, 
andfacilities used in performing an activity required by paragraph 
(a)(1)of this section, by the manufacturer or by a person whom 
themanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a newnonroad 
engine from Sec. 89.1003 upon such terms andconditions as the 
Administrator may find necessary for the purpose ofexport, research, 
investigations, studies, demonstrations, ortraining, or for reasons of 
national security.
    (c) Importation provision. (1) A new nonroad engine,vehicle, or 
equipment offered for importation or imported by a personin violation of 
Sec. 89.1003 is to be refused admission intothe United States, but the 
Secretary of the Treasury and theAdministrator may, by joint regulation, 
provide for deferring a finaldetermination as to admission and 
authorizing the delivery of such anonroad engine offered for import to 
the owner or consignee thereofupon such terms and conditions (including 
the furnishing of a bond) asmay appear to them appropriate to insure 
that the nonroad engine willbe brought into conformity with the 
standards, requirements, andlimitations applicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under 
thisparagraph, the Secretary of the Treasury shall cause 
dispositionthereof in accordance with the customs laws unless it is 
exported,under regulations prescribed by the Secretary, within 90 days 
of thedate of notice of the refusal or additional time as may be 
permittedpursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not bemade 
in such manner as may result, directly or indirectly, in thesale, to the 
ultimate consumer, of a new nonroad engine that fails tocomply with 
applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solelyfor 
export, and so labeled or tagged on the outside of the containerand on 
the engine itself, shall be subject to the provisions ofSec. 89.1003, 
except that if the country that is to receivethe engine has emission 
standards that differ from the standardsprescribed under subpart B of 
this part, then the engine must complywith the standards of the country 
that is to receive the engine.



Sec. 89.1005  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction 
torestrain violations of Sec. 89.1003(a).
    (b) Actions to restrain violations of Sec. 89.1003(a)must be 
brought by and in the name of the United States. In an action,subpoenas 
for witnesses who are required to attend a district court inany district 
may run into any other district.



Sec. 89.1006  Penalties.

    (a) Violations. A violation of the requirements of thissubpart is a 
violation of the applicable provisions of the Act,including sections 
213(d) and 203, and is subject to the penaltyprovisions thereunder.

[[Page 168]]

    (1) A person who violates Sec. 89.1003(a)(1), (a)(4), or (a)(6), or 
a manufacturer or dealer who violatesSec. 89.1003(a)(3)(i), is subject 
to a civil penalty of notmore than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violatesSec. 
89.1003(a)(3)(i) or any person who violatesSec. 89.1003(a)(3)(ii) is 
subject to a civil penalty of notmore than $2,750 for each violation.
    (3) A violation with respect to Sec. 89.1003 (a)(1), (a)(3)(i), 
(a)(4), or (a)(6) constitutes a separate offense with respectto each 
nonroad engine.
    (4) A violation with respect to Sec. 89.1003(a)(3)(ii)constitutes a 
separate offense with respect to each part or component.Each day of a 
violation with respect to Sec. 89.1003(a)(5)constitutes a separate 
offense.
    (5) A person who violates Sec. 89.1003(a)(2) or (a)(5)is subject to 
a civil penalty of not more than $32,500 per day ofviolation.
    (6) The maximum penalty values listed in this section are shownfor 
calendar year 2004. Maximum penalty limits for later years may 
beadjusted based on the Consumer Price Index. The specific 
regulatoryprovisions for changing the maximum penalties, published in 40 
CFRpart 19, reference the applicable U.S. Code citation on which 
theprohibited action is based.
    (b) Civil actions. The Administrator may commence a civilaction to 
assess and recover any civil penalty under paragraph (a) ofthis section.
    (1) An action under this paragraph may be brought in the 
districtcourt of the United States for the district in which the 
defendantresides or has the Administrator's principal place of business, 
andthe court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessedunder 
this paragraph, the court is to take into account the gravity ofthe 
violation, the economic benefit or savings (if any) resulting fromthe 
violation, the size of the violator's business, the violator'shistory of 
compliance with Title II of the Act, action taken to remedythe 
violation, the effect of the penalty on the violator's ability 
tocontinue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are requiredto 
attend a district court in any district may run into any otherdistrict.
    (c) Administrative assessment of certainpenalties--(1) 
Administrative penalty authority. In lieu ofcommencing a civil action 
under paragraph (b) of this section, theAdministrator may assess any 
civil penalty prescribed in paragraph (a)of this section, except that 
the maximum amount of penalty soughtagainst each violator in a penalty 
assessment proceeding shall notexceed $270,000, unless the Administrator 
and the Attorney Generaljointly determine that a matter involving a 
larger penalty amount isappropriate for administrative penalty 
assessment. Any suchdetermination by the Administrator and the Attorney 
General is notsubject to judicial review. Assessment of a civil penalty 
shall be byan order made on the record after opportunity for a hearing 
held inaccordance with the procedures found at part 22 of this chapter. 
TheAdministrator may compromise, or remit, with or without 
conditions,any administrative penalty which may be imposed under this 
section.
    (2) Determining amount. In determining the amount of anycivil 
penalty assessed under this paragraph, the Administrator shalltake into 
account the gravity of the violation, the economic benefitor savings (if 
any) resulting from the violation, the size of theviolator's business, 
the violator's history of compliance with TitleII of the Act, action 
taken to remedy the violation, the effect of thepenalty on the 
violator's ability to continue in business, and suchother matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by theAdministrator 
under this paragraph does not affect or limit theAdministrator's 
authority to enforce any provisions of the Act; exceptthat any violation 
with respect to which the Administrator hascommenced and is diligently 
prosecuting an action under thisparagraph, or for which the 
Administrator has issued a final order notsubject to further judicial 
review and

[[Page 169]]

for which the violator haspaid a penalty assessment under this paragraph 
shall not be thesubject of a civil penalty action under paragraph (b) of 
this section.
    (ii) No action by the Administrator under this paragraph shallaffect 
a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsectionis to 
become final 30 days after its issuance unless a petition forjudicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penaltyis 
assessed in accordance with this subsection may seek review of 
theassessment in the United States District Court for the District 
ofColumbia or for the district in which the violation is alleged to 
haveoccurred, in which such person resides, or where the 
person'sprincipal place of business is located, within the 30-day 
periodbeginning on the date a civil penalty order is issued. The 
personshall simultaneously send a copy of the filing by certified mail 
tothe Administrator and the Attorney General. The Administrator 
shallfile in the court within 30 days a certified copy, or certified 
index,as appropriate, of the record on which the order was issued. The 
courtis not to set aside or remand any order issued in accordance with 
therequirements of this paragraph unless substantial evidence does 
notexist in the record, taken as a whole, to support the finding of 
aviolation or unless the Administrator's assessment of the 
penaltyconstitutes an abuse of discretion, and the court is not to 
imposeadditional civil penalties unless the Administrator's assessment 
ofthe penalty constitutes an abuse of discretion. In any proceedings,the 
United States may seek to recover civil penalties assessed underthis 
section.
    (6) Collection. (i) If any person fails to pay an assessmentof a 
civil penalty imposed by the Administrator as provided in thispart after 
the order making the assessment has become final or after acourt in an 
action brought under paragraph (c)(5) of this section hasentered a final 
judgment in favor of the Administrator, theAdministrator shall request 
that the Attorney General bring a civilaction in an appropriate district 
court to recover the amount assessed(plus interest at rates established 
pursuant to section 6621(a)(2) ofthe Internal Revenue Code of 1986 from 
the date of the final order orthe date of final judgment, as the case 
may be). In such an action,the validity, amount, and appropriateness of 
the penalty is notsubject to review.
    (ii) A person who fails to pay on a timely basis the amount of 
anassessment of a civil penalty as described in paragraph (c)(6)(i) 
ofthis section shall be required to pay, in addition to that amount 
andinterest, the United States' enforcement expenses, 
includingattorney's fees and costs for collection proceedings, and a 
quarterlynonpayment penalty for each quarter during which the failure to 
paypersists. The nonpayment penalty is an amount equal to ten percent 
ofthe aggregate amount of that person's penalties and 
nonpaymentpenalties which are unpaid as of the beginning of such 
quarter.

[59 FR 31335, June 17, 1994, as amended at 70 FR 40447, July13, 2005]



Sec. 89.1007  Warranty provisions.

    (a) The manufacturer of each nonroad engine must warrant to 
theultimate purchaser and each subsequent purchaser that the engine 
isdesigned, built, and equipped so as to conform at the time of salewith 
applicable regulations under section 213 of the Act, and is freefrom 
defects in materials and workmanship which cause such engine tofail to 
conform with applicable regulations for its warranty period(as 
determined under Sec. 89.104).
    (b) In the case of a nonroad engine part, the manufacturer 
orrebuilder of the part may certify according to Sec. 85.2112that use 
of the part will not result in a failure of the engine tocomply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any nonroadengine 
warranted under this part is responsible for the propermaintenance of 
the engine. Proper maintenance includes replacement andservice, at the 
owner's expense at a service establishment or facilityof the owner's 
choosing, of all

[[Page 170]]

parts, items, or devices relatedto emission control (but not designed 
for emission control) under theterms of the last sentence of section 
207(a)(3) of the Act, unlesssuch part, item, or device is covered by any 
warranty not mandated bythis Act.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57023, Oct.23, 1998]



Sec. 89.1008  In-use compliance provisions.

    (a) Effective with respect to nonroad vehicles, equipment, 
andengines manufactured during model years 1996 and after:
    (1) If the Administrator determines that a substantial number ofany 
class or category of engines, although properly maintained andused, do 
not conform to the regulations prescribed under section 213of the Act 
when in actual use throughout their recall period (asdefined under Sec. 
89.104(b)), the Administrator shallimmediately notify the manufacturer 
of such nonconformity and requirethe manufacturer to submit a plan for 
remedying the nonconformity ofthe engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformityof 
any such engines which are properly used and maintained will beremedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination 
ofnonconformity and so advises the Administrator, the Administratorshall 
afford the manufacturer and other interested persons anopportunity to 
present their views and evidence in support thereof ata public hearing. 
Unless, as a result of such hearing, theAdministrator withdraws such 
determination of nonconformity, theAdministrator shall, within 60 days 
after the completion of suchhearing, order the manufacturer to provide 
prompt notification of suchnonconformity in accordance with paragraph 
(a)(2) of this section. Themanufacturer shall comply in all respects 
with the requirements ofsubpart G of this part.
    (2) Any notification required to be given by the manufacturerunder 
paragraph (a)(1) of this section with respect to any class orcategory of 
engines shall be given to dealers, ultimate purchasers,and subsequent 
purchasers (if known) in such manner and containingsuch information as 
required in subparts H and I of this part.
    (3)(i) The manufacturer shall furnish with each new nonroad 
enginewritten instructions for the proper maintenance and use of the 
engineby the ultimate purchaser as required under Sec. 89.109. 
Themanufacturer shall provide in boldface type on the first page of 
thewritten maintenance instructions notice that maintenance, 
replacement,or repair of the emission control devices and systems may be 
performedby any nonroad engine repair establishment or individual using 
anynonroad engine part which has been certified as provided inSec. 
89.1007(a).
    (ii) The instruction under paragraph (3)(i) of this section mustnot 
include any condition on the ultimate purchaser's using, inconnection 
with such engine, any component or service (other than acomponent or 
service provided without charge under the terms of thepurchase 
agreement) which is identified by brand, trade, or corporatename. 
Subject instructions also must not directly or indirectlydistinguish 
between service performed by the franchised dealers ofsuch manufacturer, 
or any other service establishments with which suchmanufacturer has a 
commercial relationship, and service performed byindependent nonroad 
engine repair facilities with which suchmanufacturer has no commercial 
relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section maybe 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the enginewill 
function properly only if the component or service so identifiedis used 
in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the 
publicinterest.
    (iv) In addition, the manufacturer shall indicate by means of alabel 
or tag permanently affixed to the engine that the engine iscovered by a 
certificate of conformity issued for the purpose ofassuring achievement 
of emission standards prescribed under section213 of the Act. This label 
or tag shall also contain informationrelating to

[[Page 171]]

control of emissions as prescribed underSec. 89.110.
    (b) The manufacturer bears all cost obligation a dealer incurs asa 
result of a requirement imposed by paragraph (a) of this section.The 
transfer of any such cost obligation from a manufacturer to adealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a 
statementrespecting the cost or value of emission control devices or 
systems,the manufacturer shall set forth in the statement the cost or 
valueattributed to these devices or systems by the Secretary of 
Labor(through the Bureau of Labor Statistics). The Secretary of Labor, 
andhis or her representatives, has the same access for this purpose 
tothe books, documents, papers, and records of a manufacturer as 
theComptroller General has to those of a recipient of assistance 
forpurposes of section 311 of the Act.
    (d) Any inspection of a nonroad engine for purposes of 
paragraph(a)(1) of this section, after its sale to the ultimate 
purchaser, isto be made only if the owner of such vehicle or engine 
voluntarilypermits such inspection to be made, except as may be provided 
by anystate or local inspection program.



Sec. 89.1009  What special provisions apply to branded engines?

    A manufacturer identifying the name and trademark of anothercompany 
on the emission control information label, as provided bySec. 
89.110(b)(2), must comply with the provisions of 40 CFR1039.640.

[70 FR 40448, July 13, 2005]



PART 90_CONTROL OF EMISSIONS FROM NONROAD SPARK-IGNITION ENGINES AT OR BELOW 19 KILOWATTS--Table of Contents




                            Subpart A_General

Sec.
90.1 Applicability.
90.2 Effective dates.
90.3 Definitions.
90.4 Treatment of confidential information.
90.5 Acronyms and abbreviations.
90.6 Table and figure numbering; position.
90.7 Reference materials.

        Subpart B_Emission Standards and Certification Provisions

90.101 Applicability.
90.102 Definitions.
90.103 Exhaust emission standards.
90.104 Compliance with emission standards.
90.105 Useful life periods for Phase 2 engines.
90.106 Certificate of conformity.
90.107 Application for certification.
90.108 Certification.
90.109 Requirement of certification--closed crankcase.
90.110 Requirement of certification--prohibitedcontrols.
90.111 Requirement of certification--prohibition ofdefeat devices.
90.112 Requirement of certification--adjustableparameters.
90.113 In-use testing program for Phase 1 engines.
90.114 Requirement of certification--engineinformation label.
90.115 Requirement of certification--supplyingproduction engines upon 
          request.
90.116 Certification procedure--determining enginedisplacement, engine 
          class, and engine families.
90.117 Certification procedure--test engine selection.
90.118 Certification procedure--service accumulationand usage of 
          deterioration factors.
90.119 Certification procedure--testing.
90.120 Certification procedure--use of special testprocedures.
90.121 Certification procedure--recordkeeping.
90.122 Amending the application and certificate ofconformity.
90.123 Denial, revocation of certificate of conformity.
90.124 Request for hearing.
90.125 Hearing procedures.
90.126 Right of entry and access.

    Subpart C_Certification Averaging, Banking, and TradingProvisions

90.201 Applicability.
90.202 Definitions.
90.203 General provisions.
90.204 Averaging.
90.205 Banking.
90.206 Trading.
90.207 Credit calculation and manufacturer compliance withemission 
          standards.
90.208 Certification.
90.209 Maintenance of records.
90.210 End-of-year and final reports.
90.211 Request for hearing.

              Subpart D_Emission Test Equipment Provisions

90.301 Applicability.

[[Page 172]]

90.302 Definitions.
90.303 Symbols, acronyms, abbreviations.
90.304 Test equipment overview.
90.305 Dynamometer specifications and calibration accuracy.
90.306 Dynamometer torque cell calibration.
90.307 Engine cooling system.
90.308 Lubricating oil and test fuels.
90.309 Engine intake air temperature measurement.
90.310 Engine intake air humidity measurement.
90.311 Test conditions.
90.312 Analytical gases.
90.313 Analyzers required.
90.314 Analyzer accuracy and specifications.
90.315 Analyzer initial calibration.
90.316 Hydrocarbon analyzer calibration.
90.317 Carbon monoxide analyzer calibration.
90.318 Oxides of nitrogen analyzer calibration.
90.319 NOX converter check.
90.320 Carbon dioxide analyzer calibration.
90.321 NDIR analyzer calibration.
90.322 Calibration of other equipment.
90.323 Analyzer bench checks.
90.324 Analyzer leakage check.
90.325 Analyzer interference checks.
90.326 Pre- and post-test analyzer calibration.
90.327 Sampling system requirements.
90.328 Measurement equipment accuracy/calibration frequencytable.
90.329 Catalyst thermal stress test.

Appendix A to Subpart D of Part 90--Tables
Appendix B to Subpart D of Part 90--Figures

                Subpart E_Gaseous Exhaust Test Procedures

90.401 Applicability.
90.402 Definitions.
90.403 Symbols, acronyms, and abbreviations.
90.404 Test procedure overview.
90.405 Recorded information.
90.406 Engine parameters to be measured and recorded.
90.407 Engine inlet and exhaust systems.
90.408 Pre-test procedures.
90.409 Engine dynamometer test run.
90.410 Engine test cycle.
90.411 Post-test analyzer procedures.
90.412 Data logging.
90.413 Exhaust sample procedure--gaseous components.
90.414 Raw gaseous exhaust sampling and analytical systemdescription.
90.415 Raw gaseous sampling procedures.
90.416 Intake air flow measurement specifications.
90.417 Fuel flow measurement specifications.
90.418 Data evaluation for gaseous emissions.
90.419 Raw emission sampling calculations--gasolinefueled engines.
90.420 CVS concept of exhaust gas sampling system.
90.421 Dilute gaseous exhaust sampling and analytical systemdescription.
90.422 Background sample.
90.423 Exhaust gas analytical system; CVS grab sample.
90.424 Dilute sampling procedures--CVS calibration.
90.425 CVS calibration frequency.
90.426 Dilute emission sampling calculations--gasolinefueled engines.
90.427 Catalyst thermal stress resistance evaluation.

Appendix A to Subpart E of Part 90--Tables
Appendix B to Subpart E of Part 90--Figures

                Subpart F_Selective Enforcement Auditing

90.501 Applicability.
90.502 Definitions.
90.503 Test orders.
90.504 Testing by the Administrator.
90.505 Maintenance of records; submittal of information.
90.506 Right of entry and access.
90.507 Sample selection.
90.508 Test procedures.
90.509 Calculation and reporting of test results.
90.510 Compliance with acceptable quality level and passingand failing 
          criteria for selective enforcement audits.
90.511 Suspension and revocation of certificates ofconformity.
90.512 Request for public hearing.
90.513 Administrative procedures for public hearing.
90.514 Hearing procedures.
90.515 Appeal of hearing decision.
90.516 Treatment of confidential information.

Appendix A to Subpart F of Part 90--Sampling Plansfor Selective 
          Enforcement Auditing of Small Nonroad Engines

             Subpart G_Importation of Nonconforming Engines

90.601 Applicability.
90.602 Definitions.
90.603 [Reserved]
90.604 General requirements.
90.605-90.610 [Reserved]
90.611 Importation for purposes other than resale.
90.612 Exemptions and exclusions.
90.613 Prohibited acts; penalties.
90.614 Treatment of confidential information.

[[Page 173]]

90.615 Importation of partially complete engines.

         Subpart H_Manufacturer Production Line Testing Program

90.701 Applicability.
90.702 Definitions.
90.703 Production line testing by the manufacturer.
90.704 Maintenance of records; submission of information.
90.705 Right of entry and access.
90.706 Engine sample selection.
90.707 Test procedures.
90.708 Cumulative Sum (CumSum) procedure.
90.709 Calculation and reporting of test results.
90.710 Compliance with criteria for production line testing.
90.711 Suspension and revocation of certificates ofconformity.
90.712 Request for public hearing.
90.713 Administrative procedures for public hearing.

   Subpart I_Emission-related Defect Reporting Requirements,Voluntary 
                Emission Recall Program, Ordered Recalls

90.801 Applicability.
90.802 Definitions.
90.803 Emission defect information report.
90.804 Voluntary emissions recall.
90.805 Reports, voluntary recall plan filing, recordretention.
90.806 Responsibility under other legal provisionspreserved.
90.807 Disclaimer of production warranty applicability.
90.808 Ordered recall provisions.

  Subpart J_Exclusion and Exemption of Nonroad Engines FromRegulations

90.901 Applicability.
90.902 Definitions.
90.903 Exclusions, application of section 216 (10) and (11)of the Act.
90.904 Who may request an exemption.
90.905 Testing exemption.
90.906 Manufacturer-owned exemption and precertificationexemption.
90.907 Display exemption.
90.908 National security exemption.
90.909 Export exemptions.
90.910 Granting of exemptions.
90.911 Submission of exemption requests.
90.912 Treatment of confidential information.
90.913 Exemption for engines certified to standards forlarge SI engines.

       Subpart K_Prohibited Acts and General EnforcementProvisions

90.1001 Applicability.
90.1002 Definitions.
90.1003 Prohibited acts.
90.1004 General enforcement provisions.
90.1005 Injunction proceedings for prohibited acts.
90.1006 Penalties.

        Subpart L_Emission Warranty and Maintenance Instructions

90.1101 Applicability.
90.1102 Definitions.
90.1103 Emission warranty, warranty period.
90.1104 Furnishing of maintenance instructions to ultimatepurchaser.

                   Subpart M_Voluntary In-Use Testing

90.1201 Applicability.
90.1202 Definitions.
90.1203 Voluntary Manufacturer In-use testing program.
90.1204 Maintenance, aging and testing of engines.
90.1205 In-use test program reporting requirements.
90.1206 Reserved.
90.1207 Entry and access.
90.1208-90.1249 [Reserved]

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

    Source: 60 FR 34598, July 3, 1995, unless otherwisenoted.



                            Subpart A_General



Sec. 90.1  Applicability.

    (a) This part applies to new nonroad spark-ignition engines 
andvehicles with gross power output at or below 19 kilowatts (kW) 
usedfor any purpose, unless we exclude them under paragraph (d) of 
thissection.
    (b) In certain cases, the regulations in this part 90 also applyto 
new engines with a gross power output above 19 kW that wouldotherwise be 
covered by 40 CFR part 1048 or 1051. See 40 CFR 1048.615or 
1051.145(a)(3) for provisions related to this allowance.
    (c) In certain cases, the regulations in this part 90 apply to 
newengines below 50 cc used in motorcycles that are motor vehicles. 
See40 CFR 86.447-2006 for provisions related to this allowance.
    (d) The following nonroad engines and vehicles are not subject tothe 
provisions of this part:

[[Page 174]]

    (1) Engines certified to meet the requirements of 40 CFR part1051 
(e.g., engines used in snowmobiles). This part neverthelessapplies to 
engines used in recreational vehicles if the manufactureruses the 
provisions of 40 CFR 1051.145(a)(3) to exempt them from therequirements 
of 40 CFR part 1051. Compliance with the provisions ofthis part is a 
required condition of that exemption.
    (2) Engines used in highway motorcycles. See 40 CFR part 86,subpart 
E.
    (3) Propulsion marine engines. See 40 CFR part 91. This partapplies 
with respect to auxiliary marine engines.
    (4) Engines used in aircraft. See 40 CFR part 87.
    (5) Engines certified to meet the requirements of 40 CFR part1048, 
subject to the provisions of Sec. 90.913.
    (6) Hobby engines.
    (7) Engines that are used exclusively in emergency and 
rescueequipment where no certified engines are available to power 
theequipment safely and practically, but not including 
generators,alternators, compressors or pumps used to provide remote 
power to arescue tool. The equipment manufacturer bears the 
responsibility toascertain on an annual basis and maintain documentation 
available tothe Administrator that no appropriate certified engine is 
availablefrom any source.
    (e) Engines subject to the provisions of this subpart are 
alsosubject to the provisions found in subparts B through N of this 
part,except that Subparts C, H, M and N of this part apply only to Phase 
2engines as defined in this subpart.
    (f) Certain text in this part is identified as pertaining to Phase1 
or Phase 2 engines. Such text pertains only to engines of thespecified 
Phase. If no indication of Phase is given, the text pertainsto all 
engines, regardless of Phase.
    (g) This part also applies to engines under 50 cc used inmotorcycles 
that are motor vehicles if the manufacturer uses theprovisions of 40 CFR 
86.447-2006 to meet the emission standardsin this part instead of the 
requirements of 40 CFR part 86. In thiscase, compliance with the 
provisions of this part is a requiredcondition of that exemption.
    (h) This part applies as specified in 40 CFR part 60 subpart JJJJ,to 
spark-ignition engines subject to the standards of 40 CFR part 
60,subpart JJJJ.

[67 FR 68339, Nov. 8, 2002, as amended at 69 FR 2441, Jan. 15,2004; 70 
FR 40448, July 13, 2005; 73 FR 3612, Jan. 18, 2008]



Sec. 90.2  Effective dates.

    (a) This subpart applies to nonroad spark-ignition engines at 
orbelow 19 kW effective with the 1997 model year.
    (b) Notwithstanding paragraph (a) of this section, this 
subpartapplies to class V engines, as specified in Sec. 90.116(b)(5), 
that are preempted from regulation in California by section209(e)(1)(A) 
of the Act, effective January 1, 1998.
    (c) Notwithstanding paragraphs (a) and (b) of this section,engines 
used in recreational vehicles with engine rated speed greaterthan or 
equal to 5,000 rpm and with no installed speed governor arenot subject 
to the provisions of this part through the 2005 modelyear. Starting with 
the 2006 model year, all the requirements of thispart apply to engines 
used in these vehicles if they are not includedin the scope of 40 CFR 
part 1051.

[60 FR 34598, July 3, 1995, as amended at 67 FR 68339, Nov. 8,2002]



Sec. 90.3  Definitions.

    The following definitions apply to part 90. All terms not 
definedherein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 etseq.
    Adjustable parameter means any device, system, or element ofdesign 
which is physically capable of being adjusted (including thosewhich are 
difficult to access) and which, if adjusted, may affectemissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the EnvironmentalProtection 
Agency or his or her authorized representative.
    Aftertreatment means the passage of exhaust gases through adevice or 
system such as a catalyst whose purpose is to chemicallyalter the gases 
prior to their release to the atmosphere.

[[Page 175]]

    Aircraft means any vehicle capable of sustained airtravel above 
treetop heights.
    Amphibious vehicle means a vehicle with wheels or tracksthat is 
designed primarily for operation on land and secondarily foroperation in 
water.
    Auxiliary emission control device (AECD) means any elementof design 
that senses temperature, vehicle speed, engine RPM,transmission gear, or 
any other parameter for the purpose ofactivating, modulating, delaying, 
or deactivating the operation of anypart of the emission control system.
    Certification means, with respect to new nonroad engines,obtaining a 
certificate of conformity for an engine family complyingwith the nonroad 
engine emission standards and requirements specifiedin this part.
    DF or df means deterioration factor.
    Eligible production or U.S. production means Phase 2engines produced 
for purposes of being used in the United States, andincludes any engine 
exported and subsequently imported in a new pieceof equipment, but 
excludes any engine introduced into commerce, byitself or in a piece of 
equipment, for use in a state that hasestablished its own emission 
requirements applicable to such enginespursuant to a waiver granted by 
EPA under section 209(e) of the CleanAir Act.
    Emission control system means any device, system, or elementof 
design which controls or reduces the emission of substances from 
anengine.
    Engine as used in this part, refers to nonroad engine.
    Engine family means a group of engines, as specified inSec. 90.116.
    Engine manufacturer means any person engaged in themanufacturing or 
assembling of new nonroad engines or the importing ofsuch engines for 
resale, or who acts for and is under the control ofany such person in 
connection with the distribution of such engines.Engine manufacturer 
does not include any dealer with respect to newnonroad engines received 
by such person in commerce.
    EPA enforcement officer means any officer, employee, orauthorized 
representative of the U.S. Environmental Protection Agencyso designated 
in writing by the Administrator (or by his or herdesignee).
    Equipment manufacturer means a manufacturer of equipmentusing 
engines covered by the provisions of this Part who does not 
alsomanufacture engines covered by the provisions of this Part.
    Exhaust emissions means matter emitted into the atmospherefrom any 
opening downstream from the exhaust port of a nonroad engine.
    Family Emission Limit or FEL means an emission levelthat is declared 
by the manufacturer to serve in lieu of an emissionstandard for the 
purposes of certification, production line testing,and Selective 
Enforcement Auditing for engines participating in theaveraging, banking 
and trading program. A declared FEL will also servein lieu of an 
emission standard where the manufacturer elects toperform voluntary in-
use testing under this part. An FEL must beexpressed to the same number 
of decimal places as the applicableemission standard.
    Fuel system means all components involved in the transport,metering, 
and mixture of the fuel from the fuel tank to the combustionchamber(s) 
including the following: fuel tank, fuel tank cap, fuelpump, fuel lines, 
oil injection metering system, carburetor or fuelinjection components, 
and all fuel system vents.
    Good engineering judgment has the meaning given in 40 CFR1068.30. 
See 40 CFR 1068.5 for the administrative process we use toevaluate good 
engineering judgment.
    Gross power means the power measured at the crankshaft orits 
equivalent, the engine being equipped only with the standardaccessories 
(such as oil pumps, coolant pumps, and so forth) necessaryfor its 
operation on the test bed.
    Handheld equipment engine means a nonroad engine that meetsthe 
requirements specified in Sec. 90.103(a)(2)(I) through(v).
    HC+NOX means total hydrocarbons plus oxides ofnitrogen.
    Hobby engines means engines used in reduced-scale models ofvehicles 
that are not capable of transporting a person (for example,model 
airplanes).

[[Page 176]]

    Marine engine means a nonroad engine that is installedor intended to 
be installed on a marine vessel. This includes aportable auxiliary 
marine engine only if its fueling, cooling, orexhaust system is an 
integral part of the vessel. There are two kindsof marine engines:
    (1) Propulsion marine engine means a marine engine that moves 
avessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used 
forpropulsion.
    Marine vessel has the meaning given in 1 U.S.C. 3, exceptthat it 
does not include amphibious vehicles. The definition in 1U.S.C. 3 very 
broadly includes every craft capable of being used as ameans of 
transportation on water.
    Maximum engine power means the maximum value of gross powerat rated 
speed.
    Model year (MY) means the manufacturer's annual new modelproduction 
period which includes January 1 of the calendar year, endsno later than 
December 31 of the calendar year, and does not beginearlier than January 
2 of the previous calendar year. Where amanufacturer has no annual new 
model production period, model yearmeans calendar year.
    New, for the purposes of this part, means a nonroad engineor nonroad 
vehicle the equitable or legal title to which has neverbeen transferred 
to an ultimate purchaser. Where the equitable orlegal title to the 
engine or vehicle is not transferred to an ultimatepurchaser until after 
the engine or vehicle is placed into service,then the engine or vehicle 
will no longer be new after it is placedinto service. A nonroad engine 
or vehicle is placed into service whenit is used for its functional 
purposes. With respect to importednonroad engines or nonroad vehicles, 
the term ``new''means an engine or vehicle that is not covered by a 
certificate ofconformity issued under this part at the time of 
importation, and thatis manufactured after the effective date of a 
regulation issued underthis part which is applicable to such engine or 
vehicle (or whichwould be applicable to such engine or vehicle had it 
been manufacturedfor importation into the United States).
    New Class I engine family means any group of engines thatemploy a 
design that is different from engine families that the 
enginemanufacturer has previously certified, and does not include any 
enginefamily certified on the basis of carryover data or any engine 
familythat differs from another engine family solely as a result of 
arunning change.
    NMHC+NOX means nonmethane hydrocarbons plusoxides of 
nitrogen.
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, 
anyinternal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or servesa 
dual purpose by both propelling itself and performing anotherfunction 
(such as garden tractors, off-highway mobile cranes, andbulldozers); or
    (ii) In or on a piece of equipment that is intended to bepropelled 
while performing its function (such as lawnmowers and stringtrimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, isportable 
or transportable, meaning designed to be and capable of beingcarried or 
moved from one location to another. Indicia oftransportability include, 
but are not limited to, wheels, skids,carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) The engine is used to propel a motor vehicle or a vehicle 
usedsolely for competition, or is subject to standards promulgated 
undersection 202 of the Act; or
    (ii) The engine is regulated by a federal New Source 
PerformanceStandard promulgated under section 111 of the Act; or
    (iii) The engine otherwise included in paragraph (1)(iii) of 
thisdefinition remains or will remain at a location for more than 
12consecutive months or a shorter period of time for an engine locatedat 
a seasonal source. A location is any site at a building, 
structure,facility, or installation. Any engine (or engines) that 
replaces anengine at a location and that is intended to perform the same 
orsimilar function as the engine replaced will be included incalculating 
the consecutive time period. An engine located at aseasonal

[[Page 177]]

source is an engine that remains at a seasonal sourceduring the full 
annual operating period of the seasonal source. Aseasonal source is a 
stationary source that remains in a singlelocation on a permanent basis 
(i.e., at least two years) and thatoperates at that single location 
approximately three months (or more)each year. This paragraph does not 
apply to an engine after the engineis removed from the location.
    Nonroad vehicle means a vehicle that is powered by a nonroadengine 
as defined in this section and that is not a motor vehicle or avehicle 
used solely for competition. Nonroad vehicle also includesequipment that 
is powered by nonroad engines.
    Nonroad vehicle manufacturer means any person engaged in 
themanufacturing or assembling of new nonroad vehicles or importing 
suchvehicles for resale, or who acts for and is under the control of 
anysuch person in connection with the distribution of such vehicles. 
Anonroad vehicle manufacturer does not include any dealer with respectto 
new nonroad vehicles received by such person in commerce.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during 
whichpersonnel other than custodial personnel are at work in the 
vicinityof the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which 
anassembly line is in operation or all times during which 
testing,maintenance, service accumulation, production or compilation 
ofrecords, or any other procedure or activity related to 
certificationtesting, to translation of designs from the test stage to 
theproduction stage, or to engine manufacture or assembly is 
beingcarried out in a facility.
    Overhead valve engine means an otto-cycle, four strokeengine in 
which the intake and exhaust valves are located above thecombustion 
chamber within the cylinder head. Such engines aresometimes referred to 
as ``valve-in-head'' engines.
    Phase 1 engine means any handheld or nonhandheld engine,that was 
produced under a certificate of conformity issued under theregulations 
in this part to the standard levels defined for Phase 1.
    Phase 2 engine means any handheld and nonhandheld enginethat was 
produced under a certificate of conformity under theregulations in this 
part to the standards defined for Phase 2 engines.
    Presentation of credentials means the display of thedocument 
designating a person as an EPA enforcement officer or EPAauthorized 
representative.
    Recreational means, for purposes of this part, relating to avehicle 
intended by the vehicle manufacturer to be operated primarilyfor 
pleasure.
    Round, rounded or rounding means, unless otherwisespecified, that 
numbers will be rounded according to ASTM-E29-93a, which is incorporated 
by reference in this partpursuant to Sec. 90.7.
    Scheduled maintenance means any adjustment, repair, 
removal,disassembly, cleaning, or replacement of components or 
systemsrequired by the manufacturer to be performed on a periodic basis 
toprevent part failure or vehicle or engine malfunction, or thoseactions 
anticipated as necessary to correct an overt indication ofmalfunction or 
failure for which periodic maintenance is notappropriate.
    Side valve engine means an otto-cycle, four stroke engine inwhich 
the intake and exhaust valves are located to the side of thecylinder, 
not within the cylinder head. Such engines are sometimesreferred to as 
``L-head'' engines.
    Small volume engine family means any handheld engine familyor any 
nonhandheld engine family whose eligible production in a givenmodel year 
are projected at the time of certification to be no morethan 5,000 
engines.
    Small volume engine manufacturer means, for nonhandheldengines, any 
engine manufacturer whose total eligible production ofnonhandheld 
engines are projected at the time of certification of agiven model year 
to be no more than 10,000 nonhandheld engines. Forhandheld engines, the 
term small volume engine manufacturermeans any engine manufacturer whose 
total eligible production ofhandheld engines are projected at the time 
of certification of

[[Page 178]]

agiven model year to be no more than 25,000 handheld engines.
    Small volume equipment manufacturer means, for nonhandheldequipment, 
any equipment manufacturer whose production of nonhandheldequipment 
subject to regulation under this part or powered by enginesregulated 
under this part, does not exceed 5,000 pieces for a givenmodel year or 
annual production period excluding that equipmentintended for 
introduction into commerce for use in a state that hasestablished its 
own emission requirements applicable to such equipmentor engines in such 
equipment, pursuant to a waiver granted by EPAunder section 209(e) of 
the Clean Air Act. For handheld equipment, theterm small volume 
equipment manufacturer has the same meaningexcept that it is limited to 
25,000 pieces of handheld equipmentrather than 5,000 pieces of 
nonhandheld equipment.
    Small volume equipment model means, for nonhandheldequipment, any 
unique model of equipment whose production subject toregulations under 
this part or powered by engines regulated under thispart, does not 
exceed 500 pieces for a given model year or annualproduction period 
excluding that equipment intended for introductioninto commerce for use 
in a state that has established its own emissionrequirements applicable 
to such equipment or engines in suchequipment, pursuant to a waiver 
granted by EPA under section 209(e) ofthe Clean Air Act. For handheld 
equipment, the term small volumeequipment model has the same meaning 
except that it is limited to5,000 pieces of handheld equipment, rather 
than 500 pieces ofnonhandheld equipment.
    Test engine means the engine or group of engines that amanufacturer 
uses during certification to determine compliance withemission 
standards.
    Ultimate purchaser means, with respect to any new nonroadengine or 
new nonroad vehicle, the first person who in good faithpurchases such 
new nonroad engine or vehicle for purposes other thanresale.
    United States means the States, the District of Columbia,the 
Commonwealth of Puerto Rico, the Commonwealth of the NorthernMariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Used solely for competition means exhibiting features thatare not 
easily removed and that would render its use other than incompetition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or partis 
covered by the warranty provisions.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15235, Mar.30, 1999; 65 
FR 24305, Apr. 25, 2000; 67 FR 68339, Nov. 8, 2002; 70 FR40448, July 13, 
2005]



Sec. 90.4  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of theinformation 
submitted pursuant to this part is entitled toconfidential treatment as 
provided by part 2, subpart B of thischapter.
    (b) Any claim of confidentiality must accompany the information 
atthe time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpartis 
confidential, a manufacturer must indicate clearly the items 
ofinformation claimed confidential by marking, circling, 
bracketing,stamping, or otherwise specifying the confidential 
information.Furthermore, EPA requests, but does not require, that the 
submitteralso provide a second copy of its submittal from which 
allconfidential information has been deleted. If a need arises 
topublicly release nonconfidential information, EPA will assume that 
thesubmitter has accurately deleted the confidential information 
fromthis second copy.
    (d) If a claim is made that some or all of the informationsubmitted 
pursuant to this subpart is entitled to confidentialtreatment, the 
information covered by that confidentiality claim willbe disclosed by 
the Administrator only to the extent and by means ofthe procedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at 
thetime of submission may be made available to the public by EPA 
withoutfurther notice to the submitter, in accordance withSec. 
2.204(c)(2)(i)(A) of this chapter.

[[Page 179]]



Sec. 90.5  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to part 90.

AECD--Auxiliary emission control device
ASME--American Society of Mechanical Engineers
ASTM--American Society for Testing and Materials
CAA--Clean Air Act
CAAA--Clean Air Act Amendments of 1990
CLD--chemiluminescent detector
CO--Carbon monoxide
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FTP--Federal Test Procedure
g/kW-hr--grams per kilowatt hour
HC--hydrocarbons
HCLD--heated chemiluminescent detector
HFID--heated flame ionization detector
ICI--independent Commercial Importer
NDIR--non-dispersive infrared analyzer
NIST--National Institute for Standards and Testing
NO--Nitric oxide
NO2--Nitrogen dioxide
NOX--Oxides of nitrogen
O2--Oxygen
OEM--original equipment manufacturer
PMD--paramagnetic detector
SAE--Society of Automotive Engineers
SEA--Selective Enforcement Auditing
SI--spark-ignition
U.S.C.--United States Code
VOC--Volatile organic compounds
ZROD--zirconiumdioxide sensor



Sec. 90.6  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end ofthe 
subpart. Tables are numbered consecutively by order of appearancein the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end ofthe 
subpart. Figures are numbered consecutively by order of appearancein the 
appendix. The figure title will indicate the topic.



Sec. 90.7  Reference materials.

    (a) Incorporation by reference. The documents in paragraph(b) of 
this section have been incorporated by reference. Theincorporation by 
reference was approved by the Director of the FederalRegister in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copiesmay be 
inspected at U.S. EPA Air and Radiation Docket, roomM-1500, 401 M St., 
SW., Washington D.C. 20460, or at theNational Archives and Records 
Administration (NARA). For informationon the availability of this 
material at NARA, call202-741-6030, or go to:http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
    (b) The following paragraphs and tables set forth the materialthat 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth materialfrom the 
American Society for Testing and Materials which has beenincorporated by 
reference. The first column lists the number and nameof the material. 
The second column lists the section(s) of this part,other than Sec. 
90.7, in which the matter is referenced. Thesecond column is presented 
for information only and may not be allinclusive. Copies of these 
materials may be obtained from AmericanSociety for Testing and 
Materials, 1916 Race St., Philadelphia, PA19103.

------------------------------------------------------------------------
         Document number and name             40 CFRpart 90 reference
------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for Distillation  Appendix A to subpart D,
     of PetroleumProducts.                  Table 3.
ASTM D1319-89:
    Standard Test Method for Hydrocarbon   Appendix A to subpart D,Table
     Types in Liquid PetroleumProducts by   3.
     Fluorescent Indicator Adsorption.
ASTM D2622-92:
    Standard Test Method for Sulfur in     Appendix A to subpart D,
     Petroleum Products by X-               Table 3.
     raySpectrometry.
ASTM D2699-92:
    Standard Test Method for Knock         Appendix A to subpart D,
     Characteristics of Motor Fuels bythe   Table 3.
     Research Method.
ASTM D2700-92:
    Standard Test Method for Knock         Appendix A to subpart D,
     Characteristics of Motor andAviation   Table 3.
     Fuels by the Motor Method.
ASTM D3231-89:
    Standard Test Method for Phosphorus    Appendix A tosubpart D, Table
     in Gasoline.                           3.
ASTM D3606-92:
    Standard Test Method for               Appendix Ato subpart D, Table
     Determination of Benzene and Toluene   3.
     inFinished Motor and Aviation
     Gasoline by Gas Chromatography.
ASTM D5191-93a:
    Standard Test Method for Vapor         Appendix A to subpart D,
     Pressure of Petroleum Products(Mini    Table 3.
     Method).
ASTM E29-93a:

[[Page 180]]

 
    Standard Practice for Using            90.116; 90.509.
     Significant Digits in Test Datato
     Determine Conformance with
     Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth materialfrom the 
Society of Automotive Engineers which has been incorporatedby reference. 
The first column lists the number and name of thematerial. The second 
column lists the section(s) of this part, otherthan Sec. 90.7, in which 
the matter is referenced. Thesecond column is presented for information 
only and may not be allinclusive. Copies of these materials may be 
obtained from Society ofAutomotive Engineers International, 400 
Commonwealth Dr., Warrendale,PA 15096-0001.

------------------------------------------------------------------------
         Document number and name             40 CFRpart 90 reference
------------------------------------------------------------------------
SAE J1930 September 1991, Electrical/      90.114
 Electronic Systems DiagnosticTerms,
 Definitions, Abbreviations and Acronyms.
SAE Paper 770141, Optimization of a Flame  90.316
 Ionization Detector forDetermination of
 Hydrocarbon in Diluted Automotive
 Exhausts, Glenn D.Reschke, 1977.
------------------------------------------------------------------------



        Subpart B_Emission Standards and Certification Provisions



Sec. 90.101  Applicability.

    The requirements of subpart B are applicable to all nonroadengines 
and vehicles subject to the provisions of subpart A of part90.



Sec. 90.102  Definitions.

    The definitions in subpart A of part 90 apply to this subpart. 
Allterms not defined herein or in subpart A have the meaning given 
themin the Act. The following definitions also apply to this subpart.
    Attitudinal control means the operator regulates either 
thehorizontal or vertical position of the equipment, or both.
    Carry means the operator completely bears the weight of 
theequipment, including the engine.
    Support means that the operator holds the equipment inposition so as 
to prevent it from falling, slipping or sinking. It isnot necessary for 
the entire weight of the equipment to be borne bythe operator.



Sec. 90.103  Exhaust emission standards.

    (a) Exhaust emissions for new Phase 1 and Phase 2 nonroad 
sparkignition engines at or below 19 kilowatts (kW), shall not exceed 
thefollowing levels. Throughout this part, NMHC+NOX 
standardsare applicable only to natural gas fueled engines at the option 
of themanufacturer, in lieu of HC+NOX standards.

                                   Table 1--Phase 1 Exhaust EmissionStandards
                                            [Grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
                                          Hydrocarbons+oxides
        Engine displacement class             of nitrogen        Hydrocarbons   Carbon monoxide     Oxides of
                                                (HC+NOX)                                          nitrogen(NOX)
----------------------------------------------------------------------------------------------------------------
I.......................................               16.1    ...............              519  ...............
II......................................               13.4    ...............              519  ...............
III.....................................  ...................              295              805             5.36
IV......................................  ...................              241              805             5.36
V.......................................  ...................              161              603             5.36
----------------------------------------------------------------------------------------------------------------


               Table 2--Phase 2 Class I-A, ClassI-B, and Class I Engine Exhaust Emission Standards
                                            [grams perkilowatt-hour]
----------------------------------------------------------------------------------------------------------------
          Engine class                HC+NOX         NMHC+NOX           CO                Effective date
----------------------------------------------------------------------------------------------------------------
I...............................            16.1            14.8             610  August 1, 2007; in addition,
                                                                                   any Class Iengine family
                                                                                   initially produced on or
                                                                                   after August 1, 2003 must
                                                                                   meetthe Phase 2 Class I
                                                                                   standards before they may be
                                                                                   introduced intocommerce.
I-A.............................              50  ..............             610  2001 Model Year.

[[Page 181]]

 
I-B.............................              40              37             610  2001 Model Year.
----------------------------------------------------------------------------------------------------------------


                                        Table 3--Phase 2 ClassII Engine Exhaust Emission Standards by Model Year
                                                                [grams perkilowatt-hour]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Model Year
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              2005  and
                 Engine Class                          Emission requirement             2001          2002          2003          2004          later
--------------------------------------------------------------------------------------------------------------------------------------------------------
II............................................  HC +NOX                                     18.0          16.6          15.0          13.6          12.1
                                                NMHC+NOX                                    16.7          15.3          14.0          12.7          11.3
                                                CO                                         610           610           610           610           610
--------------------------------------------------------------------------------------------------------------------------------------------------------


                        TABLE 4--Phase 2 HandheldExhaust Emission Standards by Model Year
                                            [grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
                                                                                 Model year
                                                           -----------------------------------------------------
            Engine class              Emission requirement                                                 2007
                                                              2002     2003     2004     2005     2006     and
                                                                                                          later
----------------------------------------------------------------------------------------------------------------
Class III..........................  HC+NOX...............      238      175      113       50       50       50
                                     CO...................      805      805      805      805      805      805
Class IV...........................  HC+NOX...............      196      148       99       50       50       50
                                     CO...................      805      805      805      805      805      805
Class V............................  HC+NOX...............  .......  .......      143      119       96       72
                                     CO...................  .......  .......      603      603      603      603
----------------------------------------------------------------------------------------------------------------

    (1) Each engine displacement class has a unique set of 
exhaustemission standards. Boundaries for each class are indicated 
inSec. 90.116(b).
    (2) Emission standards for classes III, IV, V may be used only ifan 
engine meets at least one of the following requirements:
    (i) The engine must be used in a piece of equipment that iscarried 
by the operator throughout the performance of its intendedfunction(s);
    (ii) The engine must be used in a piece of equipment that 
mustoperate multipositionally, such as upside down or sideways, 
tocomplete its intended function(s);
    (iii) The engine must be used in a piece of equipment for whichthe 
combined engine and equipment dry weight is under 14 kilograms, nomore 
than two wheels are present on the equipment, and at least one ofthe 
following attributes is also present:
    (A) The operator must alternately provide support or carry 
theequipment throughout the performance of its intended function(s);
    (B) The operator must provide support or attitudinal control forthe 
equipment throughout the performance of its intended function(s);and
    (C) The engine must be used in a generator or pump;
    (iv) The engine must be used to power one-person augers, with 
acombined engine and equipment dry weight under 20 kilograms;
    (v) The engine must be used in a recreational application, with 
acombined total vehicle dry weight under 20 kilograms;
    (vi) Where a piece of equipment otherwise meeting the requirementsof 
paragraph (a)(2)(iii) or (a)(2)(iv) of this section exceeds 
theapplicable weight limit, emission standards for class III, IV or V, 
asapplicable, may still apply if the equipment exceeds the weight 
limitby no more than the extent necessary to allow for the 
incrementalweight of a four stroke engine or the incremental weight of a 
twostroke engine having enhanced emission control acceptable to 
theAdministrator. Any manufacturer utilizing this provision

[[Page 182]]

toexceed the subject weight limitations shall maintain and makeavailable 
to the Administrator upon request, documentation tosubstantiate that the 
exceedance of either weight limitation is adirect result of application 
of a four stroke or enhanced two strokeengine having the same, less or 
very similar power to two strokeengines that could otherwise be used to 
power the equipment and remainwithin the weight limitations.
    (3) Notwithstanding paragraph (a)(2) of this section, two 
strokeengines used to power lawnmowers or other nonhandheld equipment 
maymeet Phase 1 Class III, IV or V standards and requirements, 
asappropriate, through model year 2002 subject to the provisions ofSec. 
90.107(e), (f) and (h). Such engines shall not beincluded in any 
computations of Phase 2 averaging, banking, or tradingcredits or 
eligible production.
    (4) Notwithstanding paragraph (a)(2) of this section, two-
strokeengines used to power snowthrowers may meet class III, IV, or 
Vstandards.
    (5) Notwithstanding paragraph (a)(2) of this section, engines 
usedexclusively to power products which are used exclusively 
inwintertime, such as snowthrowers and ice augers, at the option of 
theengine manufacturer, need not certify to or comply with 
standardsregulating emissions of HC, NOX. HC+NOX 
orNMHC+NOX. as applicable. If the manufacturer exercises 
theoption to certify to standards regulating such emissions, such 
enginesmust meet such standards. If the engine is to be used in any 
equipmentor vehicle other than an exclusively wintertime product such as 
asnowthrower or ice auger, it must be certified to the 
applicablestandard regulating emissions of HC, 
NOX.HC+NOX or NMHC+NOX as applicable.
    (6) In lieu of certifying to the applicable Phase 2 standards,small 
volume engine manufacturers as defined in this part may, attheir option, 
certify their engine families as Phase 1 engines untilthe 2010 model 
year for nonhandheld engine families excluding Class I-A and Class I-B 
engine families, until the 2008 model year for ClassIII and Class IV 
engine families, and until the 2010 model year forClass V engine 
families. Such engines shall not exceed the applicablePhase 1 standards 
and are excluded from the averaging, banking andtrading program and any 
related credit calculations. Beginning withthe 2010 model year for 
nonhandheld engine families, the 2008 modelyear for Class III and Class 
IV engine families, and the 2010 modelyear for Class V engine families, 
these engines must meet theapplicable Phase 2 standards.
    (7) In lieu of certifying to the applicable Phase 2 
standards,manufacturers of small volume engine families, as defined in 
this partmay, at their option, certify their small volume engine 
families asPhase 1 engines until the 2010 model year for nonhandheld 
enginefamilies excluding Class I-A and Class I-B engine families, until 
the2008 model year for Class III and Class IV engine families, and 
untilthe 2010 model year for Class V engine families. Such engines 
shallnot exceed the applicable Phase 1 standards and are excluded from 
theaveraging, banking and trading program and any related 
creditcalculations. Beginning with the 2010 model year for 
nonhandheldengine families, the 2008 model year for Class III and Class 
IV enginefamilies, and the 2010 model year for Class V engine families, 
theseengines must meet the applicable Phase 2 standards.
    (8) Notwithstanding the standards shown in Table 3 of thissection, 
the HC+NOX (NMHC+NOX) standard forPhase 2 Class II 
side valve engine families with annual production of1000 or less shall 
be 24.0 g/kW-hr (22.0 g/kW-hr) for model years 2010and later. Engines 
produced subject to this provision may not exceedthis standard and are 
excluded from the averaging, banking and tradingprogram and any related 
credit calculations.
    (b) Exhaust emissions will be measured using the procedures setforth 
in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 61 FR 58300, Nov.13, 1996; 62 
FR 42643, Aug. 7, 1997; 64 FR 15236, Mar. 30, 1999; 65 FR24305, Apr. 25, 
2000; 67 FR 68340, Nov. 8, 2002]



Sec. 90.104  Compliance with emission standards.

    Paragraphs (a) through (c) of this section apply to Phase 1engines 
only.

[[Page 183]]

Paragraphs (d) through (h) of this section applyonly to Phase 2 engines.
    (a) If all test engines representing an engine family haveemissions 
less than or equal to each emission standard in a givenengine 
displacement class, that family complies with that class ofemission 
standards.
    (b) If any test engine representing an engine family has 
emissionsgreater than any one emission standard in a given engine 
displacementclass, that family will be deemed not in compliance with 
that class ofemission standards.
    (c) If catalysts are used in an engine family, the 
enginemanufacturer must affirm that catalyst durability has been 
confirmedon the basis of the evaluation procedure that is specified in 
subpartE of this part.
    (d) The exhaust emission standards (FELs, where applicable) forPhase 
2 engines set forth in this part apply to the emissions of theengines 
for their full useful lives as determined pursuant toSec. 90.105.
    (e) For all Phase 2 engines, if all test engines representing 
anengine family have emissions, when properly tested according 
toprocedures in this part, less than or equal to each Phase 2 
emissionstandard (FEL, where applicable) in a given engine class and 
givenmodel year, when multiplicatively adjusted by the deterioration 
factordetermined in this section, that family complies with that class 
ofemission standards for purposes of certification. If any test 
enginerepresenting an engine family has emissions adjusted 
multiplicativelyby the deterioration factor determined in this section, 
greater thanany one emission standard (FEL, where applicable) for a 
givendisplacement class, that family does not comply with that class 
ofemission standards.
    (f) Each engine manufacturer must comply with all provisions ofthe 
averaging, banking and trading program outlined in subpart C ofthis part 
for each engine family participating in that program.
    (g)(1) Small volume engine manufacturers and small volume 
enginefamilies may, at their option, take deterioration factors 
forHC+NOX (NMHC+NOX) and CO from Table 1 or Table2 
of this paragraph (g), or they may calculate deterioration factorsfor 
HC+NOX (NMHC+NOX) and CO according to theprocess 
described in paragraph (h) of this section. For technologiesthat are not 
addressed in Table 1 or Table 2 of this paragraph (g),the manufacturer 
may ask the Administrator to assign a deteriorationfactor prior to the 
time of certification. The provisions of thisparagraph (g) do not apply 
to Class I-A and Class I-B engines.
    (2) Table 1 follows:

Table 1: Nonhandheld EngineHC+NOX (NMHC+NOX) and CO AssignedDeterioration Factors for Small Volume Manufacturers
                                         and Small VolumeEngine Families
----------------------------------------------------------------------------------------------------------------
                                           Side valve engines         Overhead
                                         ----------------------     valveengines
              Engine class                                     ----------------------        Engines with
                                             HC+NOX       CO       HC+NOX                   aftertreatment
                                           (NMHC+NOX)            (NMHC+NOX)     CO
----------------------------------------------------------------------------------------------------------------
Class I.................................           2.1     1.1           1.5     1.1  Dfs must be calculated
                                                                                       using theformula in Sec.
                                                                                        90.104(g)(4).
Class II................................           1.6     1.1           1.4     1.1  ..........................
----------------------------------------------------------------------------------------------------------------

    (3) Table 2 follows:

  Table 2--Handheld EngineHC+NOX and CO Assigned Deterioration Factors for SmallVolume Manufacturers and Small
                                             Volume Engine Families
----------------------------------------------------------------------------------------------------------------
                                     Two-stroke engines \1\      Four-stroke engines
           Engine class            ----------------------------------------------------          Engines
                                       HC+NOX         CO         HC+NOX         CO         withaftertreatment
----------------------------------------------------------------------------------------------------------------
Class III.........................          1.1          1.1          1.5          1.1  Dfs must be calculated
                                                                                         using theformula in
                                                                                         Sec.  90.104(g)(4).
Class IV..........................          1.1          1.1          1.5          1.1

[[Page 184]]

 
Class V...........................          1.1          1.1          1.5          1.1
----------------------------------------------------------------------------------------------------------------
\1\ Two-stroke technologies to which these assigneddeterioration factors apply include conventional two-
  strokes,compression wave designs, and stratified scavenging designs.

    (4) Formula for calculating deterioration factors for engines 
withaftertreatment:

DF = [(NE * EDF)-(CC * F)]/(NE-CC)

Where:

DF = deterioration factor.
NE = new engine emission levels prior to the catalyst (g/kW-hr)
EDF = deterioration factor for engines without catalyst as shownin Table 
1 or Table 2 of this paragraph (g)
CC = amount converted at 0 hours in g/kW-hr.
F = 0.8 for HC (NMHC), 0.0 for NOX. and 0.8 for CO forall 
classes of engines.

    (h)(1) Manufacturers shall obtain an assigned df or calculate adf, 
as appropriate, for each regulated pollutant for all Phase 2engine 
families. Such dfs shall be used for certification, productionline 
testing, and Selective Enforcement Auditing.
    (2) For engines not using assigned dfs from Table 1 or Table 2 
ofparagraph (g) of this section, dfs shall be determined as follows:
    (i) On at least one test engine representing the configurationchosen 
to be the most likely to exceed HC+NOX(NMHC+NOX) 
emission standards, (FELs where applicable),and constructed to be 
representative of production engines pursuant toSec. 90.117, conduct 
full Federal test procedure emissiontesting pursuant to the regulations 
of subpart E of this part at thenumber of hours representing stabilized 
emissions pursuant toSec. 90.118. If more than one engine is tested, 
average theresults and round to the same number of decimal places 
contained inthe applicable standard, expressed to one additional 
significantfigure;
    (ii) Conduct such emission testing again following aging theengine. 
The aging procedure should be designed to allow themanufacturer to 
appropriately predict the in-use emissiondeterioration expected over the 
useful life of the engine, taking intoaccount the type of wear and other 
deterioration mechanisms expectedunder typical consumer use which could 
affect emissions performance.If more than one engine is tested, average 
the results and round tothe same number of decimal places contained in 
the applicablestandard, expressed to one additional significant figure;
    (iii) Divide the full useful life emissions (average emissions, 
ifapplicable) for each regulated pollutant by the stabilized 
emissions(average emissions, if applicable) and round to two 
significantfigures. The resulting number shall be the df, unless it is 
less than1.0, in which case the df shall be 1.0.
    (iv) At the manufacturer's option additional emission test pointscan 
be scheduled between the stabilized emission test point and thefull 
useful life test period. If intermediate tests are scheduled, thetest 
points must be evenly spaced over the full useful life period(plus or 
minus 2 hours) and one such test point shall be at one-halfof full 
useful life (plus or minus 2 hours). For each pollutantHC+NOX 
(NMHC+NOX) and CO, a line must befitted to the data points 
treating the initial test as occurring athour zero, and using the method 
of least-squares. The deteriorationfactor is the calculated emissions 
durability period divided by thecalculated emissions at zero hours.
    (3) EPA may reject a df if it has evidence that the df is 
notappropriate for that family within 30 days of receipt from 
themanufacturer. The manufacturer must retain actual emission test 
datato support its choice of df and furnish that data to the 
Administratorupon request. Manufacturers may request approval by the 
Administratorof alternate procedures for determining

[[Page 185]]

deterioration. Anysubmitted df not rejected by EPA within 30 days shall 
be deemed tohave been approved.
    (4) Calculated deterioration factors may cover families and 
modelyears in addition to the one upon which they were generated if 
themanufacturer submits a justification acceptable to the 
Administratorin advance of certification that the affected engine 
families can bereasonably expected to have similar emission 
deteriorationcharacteristics.
    (5) Engine families that undergo running changes need not generatea 
new df if the manufacturer submits a justification acceptable to 
theAdministrator concurrent with the running change that the 
affectedengine families can be reasonably expected to have similar 
emissiondeterioration characteristics.

[60 FR 34598, July 3, 1995, as amended by 64 FR 15237, Mar.30, 1999; 65 
FR 24306, Apr. 25, 2000]



Sec. 90.105  Useful life periods for Phase 2 engines.

    (a) Manufacturers shall declare the applicable useful lifecategory 
for each engine family at the time of certification asdescribed in this 
section. Such category shall be the category whichmost closely 
approximates the expected useful lives of the equipmentinto which the 
engines are anticipated to be installed as determinedby the engine 
manufacturer. Manufacturers shall retain dataappropriate to support 
their choice of useful life category for eachengine family. Such data 
shall be furnished to the Administrator uponrequest.
    (1) For nonhandheld engines: Manufacturers shall select a usefullife 
category from Table 1 of this section at the time ofcertification. 
Engines with gross power output greater than 19 kW thathave an engine 
displacement less than or equal to one liter thatoptionally certify 
under this part as allowed inSec. 90.1(a), must certify to a useful 
life period of 1,000hours.
    (2) Table 1 follows:

     Table 1: Useful Life Categories forNonhandheld Engines [hours]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Class I...........................................    125    250     500
Class II..........................................    250    500    1000
Class I-A.........................................     50    125     300
Class I-B.........................................    125    250     500
------------------------------------------------------------------------

    (3) For handheld engines: Manufacturers shall select a useful 
lifecategory from Table 2 of this paragraph (a) at the time 
ofcertification.
    (4) Table 2 follows:

       Table 2: Useful Life Categories forHandheld Engines (Hours)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Class III..........................................     50    125    300
Class IV...........................................     50    125    300
Class V............................................     50    125    300
------------------------------------------------------------------------

    (5) Data to support a manufacturer's choice of useful lifecategory, 
for a given engine family, may include but are not limitedto:
    (i) Surveys of the life spans of the equipment in which thesubject 
engines are installed;
    (ii) Engineering evaluations of field aged engines to ascertainwhen 
engine performance deteriorates to the point where usefulnessand/or 
reliability is impacted to a degree sufficient to necessitateoverhaul or 
replacement;
    (iii) Warranty statements and warranty periods;
    (iv) Marketing materials regarding engine life;
    (v) Failure reports from engine customers; and
    (vi) Engineering evaluations of the durability, in hours, ofspecific 
engine technologies, engine materials or engine designs.
    (b) [Reserved]

[64 FR 15238, Mar. 30, 1999, as amended at 65 FR 24307, Apr.25, 2000]



Sec. 90.106  Certificate of conformity.

    (a)(1) Except as provided in Sec. 90.2(b), everymanufacturer of new 
engines produced during or after model year 1997must obtain a 
certificate of conformity covering such engines;however, engines 
manufactured during an annual production periodbeginning prior to 
September 1, 1996 are not required to be certified.
    (2) Except as required in paragraph (b)(3) of this section, ClassII 
engines

[[Page 186]]

manufactured during an annual production periodbeginning prior to 
September 1, 2000 are not required to meet Phase 2requirements.
    (b)(1) The annual production period begins either when an 
enginefamily is first produced or on January 2 of the calendar 
yearpreceding the year for which the model year is designated, 
whicheverdate is later. The annual production period ends either when 
the lastengine is produced or on December 31 of the calendar year for 
whichthe model year is named, whichever date is sooner.
    (2) Notwithstanding paragraph (b)(1) of this section, 
annualproduction periods beginning prior to September 1, 1996 may not 
exceed12 months in length.
    (3) Manufacturers who commence an annual production period for 
aClass II engine family between January 1, 2000 and September 1, 
2000must meet Phase 2 requirements for that family only if that 
productionperiod will exceed 12 months in length.
    (c) Except as provided in paragraph (d) of this section, 
acertificate of conformity is deemed to cover the engines named in 
suchcertificate and produced during the annual production period, 
asdefined in paragraph (b) of this section.
    (d) Except as provided in paragraph (e) of this section, 
thecertificate of conformity must be obtained from the 
Administratorprior to selling, offering for sale, introducing into 
commerce, orimporting into the United States the new engine. Engines 
producedprior to the effective date of a certificate of conformity may 
also becovered by the certificate, once it is effective, if the 
followingconditions are met:
    (1) The engines conform in all respects to the engines describedin 
the application for the certificate of conformity.
    (2) The engines are not sold, offered for sale, introduced 
intocommerce, or delivered for introduction into commerce prior to 
theeffective date of the certificate of conformity.
    (3) EPA is notified prior to the beginning of production when 
suchproduction will start, and EPA is provided a full opportunity 
toinspect and/or test the engines during and after their production. 
EPAmust have the opportunity to conduct SEA production line testing as 
ifthe vehicles had been produced after the effective date of 
thecertificate.
    (e) Engines that are certified by EPA prior to January 2, 1996 
formodel year 1997 may be delivered for introduction into commerce 
priorto January 2, 1996 once a certificate of conformity has been 
issued.
    (f) Engines imported by an original equipment manufacturer 
afterDecember 31 of the calendar year for which the model year is named 
arestill covered by the certificate of conformity as long as 
theproduction of the engine was completed before December 31 of 
thatyear.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15238, Mar.30, 1999]



Sec. 90.107  Application for certification.

    (a) For each engine family, the engine manufacturer must submit 
tothe Administrator a completed application for a certificate 
ofconformity.
    (b) The application must be approved and signed by the 
authorizedrepresentative of the manufacturer.
    (c) The application must be updated and corrected by amendment 
asprovided in Sec. 90.122 to accurately reflect themanufacturer's 
production.
    (d) Required content. Each application must include thefollowing 
information:
    (1) A description of the basic engine design including, but 
notlimited to, the engine family specifications;
    (2) An explanation of how the emission control system 
operates,including a detailed description of all emission control 
systemcomponents (Detailed component calibrations are not required to 
beincluded; they must be provided if requested, however.), eachauxiliary 
emission control device (AECD), and all fuel systemcomponents to be 
installed on any production or test engine(s);
    (3) Proposed test engine(s) selection and the rationale for thetest 
engine(s) selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The service accumulation period necessary to break in the 
testengine(s) and stabilize emission levels;

[[Page 187]]

    (6) A description of all adjustable operating parametersincluding 
the following:
    (i) The nominal or recommended setting and the associatedproduction 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used toestablish 
each physically adjustable range;
    (v) Information relating to why the physical limits or stops usedto 
establish the physically adjustable range of each parameter, or anyother 
means used to inhibit adjustment, are effective in preventingadjustment 
of parameters to settings outside the manufacturer'sintended physically 
adjustable ranges on in-use engines; and
    (vi) Information relating to altitude kits to be 
certified,including: a description of the altitude kit; appropriate 
partnumbers; the altitude ranges at which the kits must be installed on 
orremoved from the engine for proper emissions and engine 
performance;statements to be included in the owner's manual for 
theengine/equipment combination (and other maintenance 
relatedliterature) that: declare the altitude ranges at which the kit 
must beinstalled or removed; and state that the operation of theengine/
equipment at an altitude that differs from that at which it 
wascertified, for extended periods of time, may increase emissions; and 
astatement that an engine with the altitude kit installed will meeteach 
emission standard throughout its useful life (the rationale forthis 
assessment must be documented and retained by the manufacturer,and 
provided to the Administrator upon request);
    (7) The proposed engine information label;
    (8) All test data obtained by the manufacturer on each testengine;
    (9) A statement that the test engine(s), as described in 
themanufacturer's application for certification, has been tested 
inaccordance with the applicable test procedures, utilizing the fuelsand 
equipment required under subparts D and E of this part, and thaton the 
basis of such tests the engine(s) conforms to the requirementsof this 
part;
    (10) An unconditional statement certifying that all engines in 
theengine family comply with all requirements of this part and the 
CleanAir Act;
    (11) This paragraph (d)(11) is applicable only to Phase 2 engines.
    (i) Engine manufacturers participating in the averaging, bankingand 
trading program as described in subpart C of this part shalldeclare the 
applicable Family Emission Limit (FEL) forHC+NOX 
(NMHC+NOX).
    (ii) Provide the applicable useful life as determined underSec. 
90.105.
    (12) A statement indicating whether the engine family containsonly 
nonroad engines, only stationary engines, or both.
    (e)(1) In addition to the information specified in paragraph (d)of 
this section, manufacturers of two-stroke lawnmower engines mustsubmit 
with their application for a certificate of conformity:
    (i) For model year 1997, information establishing the highestnumber 
of two-stroke lawnmower engines produced in a single annualproduction 
period from 1992 through 1994. This number will be known asthe 
production baseline.
    (ii) For model years 1998 through 2002, information documentingthe 
previous year's production and projected production for thecurrent year.
    (2) In model year 1997, two-stroke lawnmower engine manufacturersmay 
produce up to 100 percent of their production baseline establishedunder 
paragraph (e)(1)(i) of this section.
    (3) In model year 1998, two-stroke lawnmower engine manufacturersmay 
produce up to 75 percent of their production baseline.
    (4) From model years 1999 through 2002, two-stroke lawnmowerengine 
manufacturers may produce up to 50 percent of their productionbaseline.
    (5) In model year 2003, two-stroke lawnmower engine 
manufacturersmust meet class I or II standards specified inSec. 
90.103(a). If in model year 2003 those standards havebeen superseded by 
Phase 2 standards, two-stroke lawnmower enginemanufacturers must meet 
the Phase 2 standards that are

[[Page 188]]

equivalentto the class I or II standards.
    (f) At the Administrator's request, the manufacturer must supplysuch 
additional information as may be required to evaluate theapplication 
including, but not limited to, projected nonroad engineproduction.
    (g)(1) The Administrator may modify the information 
submissionrequirements of paragraph (d) of this section, provided that 
all ofthe information specified therein is maintained by the 
enginemanufacturer as required by Sec. 90.121, and amended,updated, or 
corrected as necessary.
    (2) For the purposes of this paragraph, Sec. 90.121(a)(1) includes 
all information specified in paragraph (d) of thissection whether or not 
such information is actually submitted to theAdministrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's recordsat 
any time. At the Administrator's discretion, this review may takeplace 
either at the manufacturer's facility or at another facilitydesignated 
by the Administrator.
    (h)(1) The Administrator may, upon receipt of a written requestfrom 
an equipment manufacturer, accompanied by sufficientdocumentation, 
permit two stroke engines produced for nonhandheldequipment other than 
lawnmowers to meet the standards specified inSec. 90.103(a)(3) under 
the schedule outlined in paragraph(e) of this section. The equipment 
manufacturer must demonstrate tothe satisfaction of the Administrator 
that:
    (i) Four stroke engines for such equipment are not available 
withsuitable physical or performance characteristics; and
    (ii) The equipment can not be converted to use four stroke 
engineswithout substantial redesign for which additional lead time 
isnecessary to avoid economic hardship.
    (2) The Administrator may waive the phase-in percentages 
ofparagraphs (e)(3) and (e)(4) of this section for engines used in 
lowvolume nonhandheld equipment other than lawnmowers where the 
equipmentmanufacturer demonstrates to the satisfaction of the 
Administratorthat compliance with the production cap is not economically 
feasible.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8,1996; 62 FR 
42643, Aug. 7, 1997; 64 FR 15238, Mar. 30, 1999; 65 FR24307, Apr. 25, 
2000; 73 FR 3612, Jan. 18, 2008]



Sec. 90.108  Certification.

    (a) If, after a review of the manufacturer's submittedapplication, 
information obtained from any inspection, and such otherinformation as 
the Administrator may require, the Administratordetermines that the 
application is complete and that the engine familymeets the requirements 
of this part and the Clean Air Act, theAdministrator shall issue a 
certificate of conformity.
    (b) The Administrator shall give a written explanation 
whencertification is denied. The manufacturer may request a hearing on 
adenial. (See Sec. 90.124 for procedure.)
    (c) For certificates issued for engine families included in 
theaveraging, banking and trading program as described in subpart C 
ofthis part:
    (1) Failure to comply with all applicable averaging, banking 
andtrading provisions in this part will be considered to be a failure 
tocomply with the terms and conditions upon which the certificate 
wasissued, and the certificate may be determined to be void abinitio.
    (2) The manufacturer shall bear the burden of establishing to 
thesatisfaction of the Administrator that the conditions upon which 
thecertificate was granted were satisfied or waived.
    (d) The Administrator may, upon request by a manufacturer, waiveany 
requirement of this part otherwise necessary for the issuance of 
acertificate. The Administrator may set such conditions in acertificate 
as he or she deems appropriate to assure that the waivedrequirements are 
either satisfied or are demonstrated, for the subjectengines, to be 
inappropriate, irrelevant or met by the application ofa different 
requirement under this chapter. The Administrator mayindicate on such 
conditional certificates that failure to meet theseconditions may result 
in

[[Page 189]]

suspension or revocation or the voidingab initio of the certificate.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15238, Mar.30, 1999]



Sec. 90.109  Requirement of certification--closed crankcase.

    (a) An engine's crankcase must be closed.
    (b) For purposes of this section, ``crankcase'' meansthe housing for 
the crankshaft and other related internal parts.
    (c) Notwithstanding paragraph (a) of this section, theAdministrator 
will allow open crankcases for engines used exclusivelyto power 
snowthrowers based upon a manufacturer's demonstration thatall 
applicable emission standards will be met by the engine for 
thecombination of emissions from the crankcase, and exhaust 
emissionsmeasured using the procedures in subpart E of this part. 
Thisdemonstration may be made based upon best engineering judgment. 
Uponrequest of the Administrator, the manufacturer must provide 
anexplanation of any procedure or methodology used to determine that 
thetotal CO emissions from the crankcase and the exhaust are below 
theapplicable standard for CO.

[60 FR 34598, July 3, 1995, as amended at 61 FR 58301, Nov.13, 1996]



Sec. 90.110  Requirement of certification--prohibited controls.

    (a) An engine may not be equipped with an emission control 
device,system, or element of design for the purpose of complying 
withemission standards if such device, system, or element of design 
willcause or contribute to an unreasonable risk to public health, 
welfare,or safety in its operation or function.
    (b) You may not design your engines with emission-control 
devices,systems, or elements of design that cause or contribute to 
anunreasonable risk to public health, welfare, or safety whileoperating. 
For example, this would apply if the engine emits a noxiousor toxic 
substance it would otherwise not emit that contributes tosuch an 
unreasonable risk.

[60 FR 34598, July 3, 1995, as amended at 67 FR 68340, Nov. 8,2002]



Sec. 90.111  Requirement of certification--prohibition of defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, ``defeat device''means any device, 
system, or element of design which senses operationoutside normal 
emission test conditions and reduces emission controleffectiveness.
    (1) Defeat device includes any auxiliary emission control 
device(AECD) that reduces the effectiveness of the emission control 
systemunder conditions which may reasonably be expected to be 
encountered innormal operation and use unless such conditions are 
included in thetest procedure.
    (2) Defeat device does not include such items which either 
operateonly during engine starting or are necessary to protect the 
engine (orvehicle in which it is installed) against damage or accident 
duringits operation.



Sec. 90.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply withall 
requirements of this subpart for any specification within thephysically 
available range.
    (b) An operating parameter is not considered adjustable if it 
ispermanently sealed by the manufacturer or otherwise not 
normallyaccessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters beset 
to any specification within the adjustable range duringcertification or 
a selective enforcement audit to determine compliancewith the 
requirements of this subpart.



Sec. 90.113  In-use testing program for Phase 1 engines.

    (a) This section applies only to Phase 1 engines. In-use 
testingprovisions for Phase 2 engines are found in subpart M of this 
part. Atthe time of certification the engine manufacturer may propose 
whichengine families should be included in an in-use test program. EPA 
willapprove a manufacturer's test program if the selected engine 
familiesrepresent an adequate consideration of the elements listed 
inparagraphs (b) and (c) of this section.

[[Page 190]]

    (b) Number of engines to be tested. The number ofengines to be 
tested by a manufacturer is determined by the followingmethod:
    (1) For an engine manufacturer with total projected annualproduction 
of more than 75,000 engines destined for the United Statesmarket for 
that model year, the minimum number of engines to be testedmay be the 
lowest of the numbers determined in paragraph (b)(1)(i),(ii) or (iii) of 
this section:
    (i) Divide the manufacturer's total projected annual production 
ofsmall SI engines destined for the United States market for that 
modelyear by 50,000, and round to the nearest whole number;
    (ii) Test five engines each from 25 percent of all engine 
familiescertified in that model year; and
    (iii) Test three engines each from 50 percent of all enginefamilies 
certified in that model year.
    (2) An engine manufacturer with total projected annual productionof 
75,000 engines or less destined for the United States market forthat 
model year may test a minimum of two engines.
    (c) Criteria for selecting test engines. An enginemanufacturer may 
select test engines from engine families utilizingthe following criteria 
and in the order specified:
    (1) Engine families using emission control technology which 
mostlikely will be used on Phase 2 engines;
    (2) Engine families using aftertreatment;
    (3) Engine families certified to different emission standards;
    (4) Different engine designs (such as sidevalve head versusoverhead 
valve engines);
    (5) Engine families using emission control technology 
specificallyinstalled to achieve compliance with emission standards of 
this part;
    (6) The engine family with the highest projected annual sales; and
    (7) Engine families which meet the above criteria, but have notbeen 
included in prior model year in-use testing programs as requiredby these 
provisions.
    (d) Collection of in-use engines. An engine manufacturer mayprocure 
in-use engines which have been operated for between half andthree-
quarters of the engine's advertised (or projected) useful life.All 
testing may be completed within three years from the date thecertificate 
is first issued for an engine family undergoing in-usetesting.
    (1) Test engines may be procured from sources not associated withthe 
engine manufacturer or vehicle manufacturer, except that withprior 
approval of the Administrator, an engine manufacturer withannual sales 
of less than 50,000 engines may obtain in-use enginesassociated with 
itself or its vehicle manufacturer.
    (2) A test engine should have a maintenance history representativeof 
actual in-use conditions.
    (i) A manufacturer may question the end user regarding 
theaccumulated usage, maintenance, operating conditions, and storage 
ofthe test engines.
    (ii) Documents used in the procurement process may be maintainedas 
required in Sec. 90.121.
    (3) Maintenance and testing of test engines. (i) Themanufacturer may 
perform minimal set-to-spec maintenance on a testengine. Maintenance may 
include only that which is listed in theowner's instructions for engines 
with the amount of service and age ofthe acquired test engine.
    (ii) Documentation of all maintenance and adjustments may 
bemaintained and retained as required by Sec. 90.121.
    (4) One valid emission test may be conducted for each in-useengine.
    (5) If a selected in-use engine fails to comply with anyapplicable 
certification emission standard, the manufacturer maydetermine the 
reason for noncompliance. The manufacturer may reportall determinations 
for noncompliance in its annual in-use test resultreport as described 
below.
    (e) In-use test program reporting. The manufacturer maysubmit to the 
Administrator by January 30 of each calendar year allemission testing 
results generated from in-use testing. The followinginformation may be 
reported for each test engine:
    (1) Engine family;
    (2) Model;
    (3) Engine serial number;
    (4) Date of manufacture;

[[Page 191]]

    (5) Estimated hours of use;
    (6) Results of all emission testing;
    (7) Summary of all maintenance and/or adjustments performed;
    (8) Summary of all modifications and/or repairs; and
    (9) Determinations of compliance and/or noncompliance.
    (f) The Administrator may approve and/or suggest modifications toa 
manufacturer's in-use testing program.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999]



Sec. 90.114  Requirement of certification--engine information label.

    (a) The engine manufacturer must affix at the time of manufacturea 
permanent and legible label identifying each nonroad engine. Thelabel 
must meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed 
withoutdestroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal 
engineoperation and not normally requiring replacement during engine 
life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average 
personafter the engine is installed in the vehicle.
    (b) If the nonroad vehicle obscures the label on the engine, 
thenonroad vehicle manufacturer must attach a supplemental label so 
thatthis label is readily visible to the average person. The 
supplementallabel must:
    (1) Be attached in such a manner that it cannot be removed 
withoutdestroying or defacing the label;
    (2) Be secured to a vehicle part necessary for normal operationand 
not normally requiring replacement during the vehicle life; and
    (3) Be identical in content to the label which was obscured.
    (c) The label must contain the following information:
    (1) The heading ``Important Engine Information;''
    (2) The full corporate name and trademark of the enginemanufacturer;
    (3) The statement, ``This (specify vehicle or engine, asapplicable) 
is certified to operate on (specify operatingfuel(s));''
    (4) Identification of the Exhaust Emission Control 
System(Abbreviations may be used and must conform to the nomenclature 
andabbreviations provided in the Society of Automotive 
Engineersprocedure J1930, ``Electrical/Electronic Systems 
DiagnosticTerms, Definitions, Abbreviations and Acronyms,'' 
September1991. This procedure has been incorporated by reference. 
SeeSec. 90.7.);
    (5) All engine lubricant requirements;
    (6) Date of engine manufacture [day (optional), month and year];
    (7) The statement ``THIS ENGINE CONFORMS TO U.S. EPA REGSFOR [MODEL 
YEAR].'';
    (8) EPA standardized engine family designation;
    (9) Engine displacement [in cubic centimeters];
    (10) Other information concerning proper maintenance and use 
orindicating compliance or noncompliance with other standards may 
beindicated on the label;
    (11) For Phase 2 engines, the useful life category as determinedby 
the manufacturer pursuant to Sec. 90.105. Such usefullife category 
shall be shown by one of the following statements to beappended to the 
statement required under paragraph (c)(7) of thissection:
    (i) ``EMISSIONS COMPLIANCE PERIOD: [useful life]HOURS''; or
    (ii) ``EMISSIONS COMPLIANCE PERIOD: CATEGORY [fill in C, Bor A as 
indicated and appropriate from the tables inSec. 90.105], REFER TO 
OWNER'S MANUAL FOR FURTHERINFORMATION'';
    (d) If there is insufficient space on the engine (or on thevehicle 
where a supplemental label is required under paragraph (b) ofthis 
section) to accommodate a label including all the informationrequired in 
paragraph (c) of this section, the manufacturer may deleteor alter the 
label as indicated in this paragraph. The informationdeleted from the 
label must appear in the owner's manual.
    (1) Exclude the information required in paragraphs (c)(3), (4),and 
(5) of this section. The fuel or lubricant may be specifiedelsewhere on 
the engine.
    (2) Exclude the information required by paragraph (c)(6) of 
thissection, if

[[Page 192]]

the date the engine was manufactured is stamped onthe engine.
    (e) The Administrator may, upon request, waive or modify the 
labelcontent requirements of paragraphs (c) and (d) of this 
section,provided that the intent of such requirements is met.
    (f) Manufacturers electing to use the labeling language ofparagraph 
(c)(11)(ii) of this section must provide in the documentsintended to be 
conveyed to the ultimate purchaser, the statement:
    (1) For nonhandheld engines: The Emissions Compliance Periodreferred 
to on the Emissions Compliance label indicates the number ofoperating 
hours for which the engine has been shown to meet Federalemission 
requirements. For engines less than 66 cc, Category C=50hours, B=125 
hours, and A=300 hours. For engines equal to or greaterthan 66 cc but 
less than 225 cc displacement, Category C=125 hours, B=250 hours, and 
A=500 hours. For engines of 225 cc or more, Category C=250 hours, B=500 
hours, and A=1000 hours.
    (2) For handheld engines: The Emissions Compliance Period referredto 
on the Emissions Compliance label indicates the number of operatinghours 
for which the engine has been shown to meet Federal 
emissionrequirements. Category C=50 hours, B=125 hours, and A=300 hours.
    (3) The manufacturer must provide, in the same document as 
thestatement in paragraph (f)(1) or (f)(2) of this section, a 
statementof the engine's displacement or an explanation of how to 
readilydetermine the engine's displacement. The Administrator may 
approvealternate language to the statement in paragraph (f)(1) or (f)(2) 
ofthis section, provided that the alternate language provides 
theultimate purchaser with a clear description of the number of 
hoursrepresented by each of the three letter categories for the 
subjectengine's displacement.
    (g) Stationary engines required by 40 CFR part 60, subpart JJJJ,to 
meet the requirements of this part 90 must meet the labelingrequirements 
of 40 CFR 60.4242.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999; 65 
FR 24307, Apr. 25, 2000; 73 FR 3613, Jan. 18, 2008]



Sec. 90.115  Requirement of certification--supplying production enginesupon request.

    Upon the Administrator's request, the manufacturer must supply 
areasonable number of production engines for testing and 
evaluation.These engines must be representative of typical production 
andsupplied for testing at such time and place and for such 
reasonableperiods as the Administrator may require.



Sec. 90.116  Certification procedure--determining engine displacement,engine class, and engine families.

    (a) Engine displacement must be calculated using nominal 
enginevalues and rounded to the nearest whole cubic centimeter in 
accordancewith ASTM E29-93a. This procedure has been incorporated 
byreference. See Sec. 90.7.
    (1) Class I-A--nonhandheld equipment engines less than 66 ccin 
displacement;
    (2) Class I-B--nonhandheld equipment engines greater than orequal to 
66 cc but less than 100 cc in displacement;
    (3) Class I--nonhandheld equipment engines greater than orequal to 
100 cc but less than 225 cc in displacement;
    (4) Class II--nonhandheld equipment engines greater than orequal to 
225 cc in displacement;
    (5) Class III--handheld equipment engines less than 20 cc 
indisplacement,
    (6) Class IV--handheld equipment engines equal or greaterthan 20 cc 
but less than 50 cc in displacement, and
    (7) Class V--handheld equipment engines equal to or greaterthan 50 
cc in displacement.
    (c) The manufacturer's product line will be divided into groupingsof 
engine families as specified by paragraph (d) of this section.
    (d) To be classed in the same engine family, engines must 
beidentical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, borespacings, 
and so forth);
    (4) The number of cylinders;
    (5) The engine class;
    (6) The location of valves, where applicable, with respect to 
thecylinder (e.g. side valves or overhead valves);

[[Page 193]]

    (7) The number of catalytic converters, location, volume 
andcomposition;
    (8) The thermal reactor characteristics;
    (9) The fuel required (e.g. gasoline, natural gas, LPG); and
    (10) The useful life category.
    (e) At the manufacturer's option, engines identical in all 
therespects listed in paragraph (d) of this section may be 
furtherdivided into different engine families if the Administrator 
determinesthat they may be expected to have different emission 
characteristics.This determination is based upon the consideration of 
features suchas:
    (1) The bore and stroke;
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppetvalve, 
reed valve, rotary valve, and so forth);
    (4) The intake and exhaust valve or port sizes, as applicable;
    (5) The fuel system;
    (6) The exhaust system; and
    (7) The method of air aspiration.
    (f) Where engines are of a type which cannot be divided intoengine 
families based upon the criteria listed in paragraph (d) ofthis section, 
the Administrator will establish families for thoseengines based upon 
the features most related to their emissioncharacteristics.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999; 65 
FR 24308, Apr. 25, 2000]



Sec. 90.117  Certification procedure--test engine selection.

    (a) For Phase 1 engines, the manufacturer must select, from 
eachengine family, a test engine that the manufacturer determines to 
bemost likely to exceed the emission standard. For Phase 2 engines, 
themanufacturer must select, from each engine family, a test engine of 
aconfiguration that the manufacturer determines to be most likely 
toexceed the HC+NOX (NMHC+NOX) Family 
EmissionLimit (FEL), or HC+NOX (NMHC+NOX) standard 
ifno FEL is applicable.
    (b) The test engine must be constructed to be representative 
ofproduction engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999]



Sec. 90.118  Certification procedure--service accumulation and usage ofdeterioration factors.

    (a)(1) The test engine must be operated with all emission 
controlsystems operating properly for a period sufficient to 
stabilizeemissions.
    (2) The period sufficient to stabilize emissions may not exceed 
12hours.
    (b) No maintenance, other than recommended lubrication and 
filterchanges, may be performed during service accumulation without 
theAdministrator's approval.
    (c) Service accumulation is to be performed in a manner using 
goodengineering judgment to ensure that emissions are representative 
ofproduction engines.
    (d) The manufacturer must maintain, and provide to theAdministrator 
if requested, records stating the rationale forselecting a service 
accumulation period less than 12 hours and recordsdescribing the method 
used to accumulate hours on the test engine(s).
    (e) For purposes of establishing whether Phase 2 engines complywith 
applicable exhaust emission standards or FELs, the test resultsfor each 
regulated pollutant as measured pursuant toSec. 90.119 shall be 
multiplied by the applicable dfdetermined under Sec. 90.104 (g) or (h). 
The product of thetwo numbers shall be rounded to the same number of 
decimal placescontained in the applicable standard, and compared against 
theapplicable standard or FEL, as appropriate.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8,1996; 64 FR 
15239, Mar. 30, 1999]



Sec. 90.119  Certification procedure--testing.

    (a) Manufacturer testing. The manufacturer must test thetest engine 
using the specified test procedures and appropriate testcycle. All test 
results must be reported to the Administrator.
    (1) The test procedure to be used is detailed in Subpart E of 
thispart.

[[Page 194]]

    (i) Class I and II engines must use the test cycle that 
isappropriate for their application. Engines that operate only 
atintermediate speed must use Test Cycle A, which is described in Table2 
of Appendix A to subpart E of this part. Engines that operate onlyat 
rated speed must use Test Cycle B, which is described in Table 2 
ofAppendix A to subpart E of this part. If an engine family 
includesengines used in both rated-speed and intermediate-speed 
applications,the manufacturer must select the duty cycle that will 
result in worst-case emission results for certification. For any testing 
aftercertification, the engine must be tested using the most 
appropriatetest cycle based on the engine's installed governor.
    (ii) Class I-A, III, IV, and V engines must use Test Cycle 
Cdescribed in subpart E of this part.
    (2) Emission test equipment provisions are described in subpart Dof 
this part.
    (b) Administrator testing. (1) The Administrator may requirethat any 
one or more of the test engines be submitted to theAdministrator, at 
such place or places as the Administrator maydesignate, for the purposes 
of conducting emission tests. TheAdministrator may specify that testing 
will be conducted at themanufacturer's facility, in which case 
instrumentation and equipmentspecified by the Administrator must be made 
available by themanufacturer for test operations. Any testing conducted 
at amanufacturer's facility must be scheduled by the manufacturer 
aspromptly as possible.
    (2)(i) Whenever the Administrator conducts a test on a testengine, 
the results of that test will, unless subsequently invalidatedby the 
Administrator, comprise the official data for the engine andthe 
manufacturer's data will not be used in determining compliancewith 
emission standards.
    (ii) Prior to the performance of such test, the Administrator 
mayadjust or cause to be adjusted any adjustable parameter of the 
testengine which the Administrator has determined to be subject 
toadjustment for certification testing, to any setting within 
thephysically adjustable range of that parameter, to determine 
whethersuch engine conforms to applicable emission standards.
    (iii) For those engine parameters which the Administrator has 
notdetermined to be subject to adjustment for certification testing, 
thetest engine presented to the Administrator for testing will 
becalibrated within the production tolerances applicable to 
themanufacturer specification shown on the engine label or in the 
owner'smanual, as specified in the application for certification.
    (c) Use of carryover test data. In lieu of testing, themanufacturer 
may submit, with the Administrator's approval, emissiontest data used to 
certify substantially similar engine families inprevious years. This 
``carryover'' test data is onlyallowable if the data shows the test 
engine would fully comply withthe emission standards for the applicable 
class.
    (d) Scheduled maintenance during testing. No scheduledmaintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1)Manufacturers may 
not perform any unscheduled engine, emission controlsystem, or fuel 
system adjustment, repair, removal, disassembly,cleaning, or replacement 
on a test engine without the advance approvalof the Administrator.
    (2) The Administrator may approve unscheduled maintenance if:
    (i) A preliminary determination has been made that a part failureor 
system malfunction, or the repair of such failure or malfunction,does 
not render the engine unrepresentative of engines in use, anddoes not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenanceor 
repairs is indicated by an overt malfunction such as persistentmisfire, 
engine stall, overheating, fluid leakage, or loss of oilpressure.
    (3) Emission measurements may not be used as a means ofdetermining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify theextent 
of any overt indication of part failure (for example, misfire,stall), or 
an activation of an audible and/or visual signal, prior tothe 
manufacturer performing any

[[Page 195]]

maintenance related to such overtindication or signal.
    (5) Unless approved by the Administrator prior to use, 
enginemanufacturers may not use any equipment, instruments, or tools 
toidentify malfunctioning, maladjusted, or defective engine 
componentsunless the same or equivalent equipment, instruments, or tools 
areavailable at dealerships and other service outlets and are used 
inconjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or 
systemmalfunction occurrence and/or repair rendered the 
engineunrepresentative of production engines, the engine cannot be used 
as atest engine.
    (7) Unless waived by the Administrator, complete emission testsare 
required before and after any engine maintenance which mayreasonably be 
expected to affect emissions.
    (f) Engine failure. A manufacturer may not use as a testengine any 
engine which incurs major mechanical failure necessitatingdisassembly of 
the engine. This prohibition does not apply to failureswhich occur after 
completion of the service accumulation period.

[60 FR 34598, July 3, 1995, as amended at 65 FR 24308, Apr.25, 2000; 70 
FR 40448, July 13, 2005]



Sec. 90.120  Certification procedure--use of special test procedures.

    (a) Use of special test procedures by EPA. The Administratormay 
establish special test procedures for any engine that theAdministrator 
determines is not susceptible to satisfactory testingunder the specified 
test procedures set forth in subpart E of thispart.
    (b)(1) Use of alternate test procedures by an enginemanufacturer. A 
manufacturer may elect to use an alternate testprocedure provided that 
it yields results equal to the results fromthe specified test procedure 
in subpart E, its use is approved inadvance by the Administrator, and 
the basis for equivalent resultswith the specified test procedure is 
fully described in themanufacturer's application.
    (2) An engine manufacturer electing to use alternate testprocedures 
is solely responsible for the results obtained. TheAdministrator may 
reject data generated under test procedures which donot correlate with 
data generated under the specified procedures.
    (3) [Reserved]
    (4) Where we specify mandatory compliance with the procedures of40 
CFR part 1065, manufacturers may elect to use the proceduresspecified in 
40 CFR part 86, subpart N, as an alternate test procedurewithout advance 
approval by the Administrator.
    (c) Optional procedures approved during Phase 1 can be carriedover 
to Phase 2, following advance approval by the Administrator, tothe 
extent the alternate procedure continues to yield results equal tothe 
results from the specified test procedures in subpart E of thispart.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999; 70 
FR 40448, July 13, 2005]



Sec. 90.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following 
adequatelyorganized records:
    (1) Copies of all applications filed with the Administrator;
    (2) A copy of all data obtained through the in-use testingprogram; 
and
    (3) A detailed history of each test engine used for 
certificationincluding the following:
    (i) A description of the test engine's construction, including 
ageneral description of the origin and buildup of the engine, stepstaken 
to insure that it is representative of production engines,description of 
components specially built for the test engine, and theorigin and 
description of all emission-related components;
    (ii) A description of the method used for engine 
serviceaccumulation, including date(s) and the number of hours 
accumulated;
    (iii) A description of all maintenance, including 
modifications,parts changes, and other servicing performed, and the 
date(s), andreason(s) for such maintenance;
    (iv) A description of all emission tests performed includingroutine 
and

[[Page 196]]

standard test documentation, as specified in subpartE of this part, 
date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine 
oremission control performance, giving the date and time of each and 
thereason(s) for the test; and
    (vi) A description of any significant event(s) affecting theengine 
during the period covered by the history of the test engine butnot 
described by an entry under one of the previous paragraphs of 
thissection.
    (b) Routine emission test data, such as those reporting test 
celltemperature and relative humidity at start and finish of test and 
rawemission results from each mode or test phase, must be retained for 
aperiod of one year after issuance of all certificates of conformity 
towhich they relate. All other information specified in paragraph (a) 
ofthis section must be retained for a period of eight years 
afterissuance of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, 
providedthat, at the Administrator's request, organized, written records 
inEnglish are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's 
request,copies of any engine maintenance instructions or explanations 
issuedby the manufacturer.



Sec. 90.122  Amending the application and certificate of conformity.

    (a) The engine manufacturer must notify the Administrator wheneither 
an engine is to be added to a certificate of conformity, an FELis to be 
changed, or changes are to be made to a product line coveredby a 
certificate of conformity. Notification occurs when themanufacturer 
submits an amendment to the original application prior toeither 
producing such engines or making such changes to a productline.
    (b) The amendment must request that the engine 
manufacturer'sexisting certificate of conformity be amended and include 
thefollowing information:
    (1) A full description of the engine to be added or the change(s)to 
be made in production;
    (2) The manufacturer's proposed test engine selection(s); and
    (3) Engineering evaluations or reasons why the original testengine 
is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer toperform 
tests on an engine representing the engine to be added orchanged.
    (d) Decision by Administrator. (1) Based on the submittedamendment 
and data derived from such testing as the Administrator mayrequire or 
conduct, the Administrator must determine whether theproposed addition 
or change would still be covered by the certificateof conformity then in 
effect.
    (2) If the Administrator determines that the new or changedengine(s) 
meets the requirements of this subpart and the Act, theappropriate 
certificate of conformity will be amended.
    (3) If the Administrator determines that the proposed amendmentwould 
not be covered by the certificate of conformity, theAdministrator must 
provide a written explanation to the enginemanufacturer of his or her 
decision not to amend the certificate. Themanufacturer may request a 
hearing on a denial.
    (4) If the Administrator determines that a revised FEL meets 
therequirements of this subpart and the Act, the appropriate 
certificateof conformity will be amended, or a new certificate will be 
issued toreflect the revised FEL. The certificate of conformity is 
revisedconditional upon compliance with Sec. 90.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes inor 
additions to production engines concurrently with amending 
theapplication for an engine family as set forth in paragraph (a) and 
(b)of this section. In these circumstances the manufacturer may 
implementthe production change without EPA pre-approval provided the 
requestfor change together with all supporting emission test data, 
relatedengineering evaluations, and other supporting documentation 
isreceived at EPA within three working days of implementing the 
change.Such changes

[[Page 197]]

are ultimately still subject to the provisions ofparagraphs (c) and (d) 
of this section.
    (2) If, after a review, the Administrator determines thatadditional 
testing or information is required, the engine manufacturermust provide 
required test data or information within 30 days or ceaseproduction of 
the affected engines.
    (3) If the Administrator determines that the affected engines donot 
meet applicable requirements, the Administrator will notify theengine 
manufacturer to cease production of the affected engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar.30, 1999; 69 
FR 1833, Jan. 12, 2004]



Sec. 90.123  Denial, revocation of certificate of conformity.

    (a) If, after review of the engine manufacturer's 
application,request for certification, information obtained from any 
inspection,and any other information the Administrator may require, 
theAdministrator determines that the test engine does not meet 
applicablestandards and requirements, the Administrator will notify 
themanufacturer in writing, setting forth the basis for 
thisdetermination.
    (b) Notwithstanding the fact that engines described in 
theapplication may comply with all other requirements of this 
subpart,the Administrator may deny the issuance of or revoke a 
previouslyissued certificate of conformity if the Administrator finds 
any one ofthe following infractions to be substantial:
    (1) The engine manufacturer submits false or incompleteinformation;
    (2) The engine manufacturer denies an EPA enforcement officer orEPA 
authorized representative the opportunity to conduct 
authorizedinspections;
    (3) The engine manufacturer fails to supply requested informationor 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data whichit 
submits or otherwise circumvents the intent of the Act or thispart; or
    (5) The engine manufacturer denies an EPA enforcement officer orEPA 
authorized representative reasonable assistance (as defined inSec. 
90.506).
    (c) If a manufacturer knowingly commits an infraction specified 
inparagraph (b)(1) or (b)(4) of this section or knowingly commits 
anyfraudulent act which results in the issuance of a certificate 
ofconformity, the Administrator may deem such certificate void abinitio.
    (d) When the Administrator denies or revokes a certificate 
ofconformity, the engine manufacturer will be provided a 
writtendetermination. The manufacturer may request a hearing on 
theAdministrator's decision.
    (e) Any revocation of a certificate of conformity extends nofurther 
than to forbid the introduction into commerce of those enginespreviously 
covered by the certification which are still in thepossession of the 
engine manufacturer, except in cases of such fraudor other misconduct 
that makes the certification void ab initio.



Sec. 90.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on 
theAdministrator's denial or revocation of a certificate of conformity.
    (b) The engine manufacturer's request must be filed within 30 daysof 
the Administrator's decision, be in writing, and set forth 
themanufacturer's objections to the Administrator's decision and data 
tosupport the objections.
    (c) If, after review of the request and supporting data, 
theAdministrator finds that the request raises a substantial and 
factualissue, the Administrator will provide the engine manufacturer 
ahearing.



Sec. 90.125  Hearing procedures.

    The hearing procedures set forth in Sec. Sec. 90.513,90.514, and 
90.515 apply to this subpart.



Sec. 90.126  Right of entry and access.

    Any engine manufacturer that has applied for certification of anew 
engine or engine family subject to certification testing underthis 
subpart must admit or cause to be admitted to any applicablefacilities 
during operating hours any EPA enforcement officer or

[[Page 198]]

EPA authorized representative as provided inSec. 90.506.



    Subpart C_Certification Averaging, Banking, and TradingProvisions

    Source: 64 FR 15239, Mar. 30, 1999, unless otherwisenoted.



Sec. 90.201  Applicability.

    The requirements of this subpart C are applicable to all Phase 
2spark-ignition engines subject to the provisions of subpart A of 
thispart except as provided in Sec. 90.103(a). These provisionsare not 
applicable to any Phase 1 engines. Participation in theaveraging, 
banking and trading program is voluntary, but if amanufacturer elects to 
participate, it must do so in compliance withthe regulations set forth 
in this subpart. The provisions of thissubpart are applicable for 
HC+NOX (NMHC+NOX)emissions but not for CO 
emissions. To the extent specified in 40 CFRpart 60, subpart JJJJ, 
stationary engines certified under this partand subject to the standards 
of 40 CFR part 60, subpart JJJJ, mayparticipate in the averaging, 
banking, and trading program describedin this subpart.

[73 FR 3613, Jan. 18, 2008]



Sec. 90.202  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart:
    Averaging means the exchange of emission credits betweenengine 
families within a given manufacturer's product line.
    Banking means the retention of emission credits by themanufacturer 
generating the emission credits or obtaining such creditsthrough 
trading, for use in future model year averaging or trading aspermitted 
in this part.
    Emission credits represent the amount of emission reductionor 
exceedance, by an engine family, below or above the 
applicableHC+NOX (NMHC+NOX) emission 
standard,respectively. FELs below the standard create 
``positivecredits,'' while FELs above the standard create 
``negativecredits.'' In addition, ``projected credits'' referto emission 
credits based on the projected applicable productionvolume of the engine 
family. ``Reserved credits'' areemission credits generated within a 
model year waiting to be reportedto EPA at the end of the model year. 
``Actual credits''refer to emission credits based on actual applicable 
production volumeas contained in the end-of-year reports submitted to 
EPA. Some or allof these credits may be revoked if EPA review of the 
end-of-yearreports or any subsequent audit action(s) reveals problems or 
errorsof any nature with credit computations.
    Trading means the exchange of emission credits betweenmanufacturers.



Sec. 90.203  General provisions.

    (a) The certification averaging, banking, and trading provisionsfor 
HC+NOX and NMHC+NOX emissions fromeligible engines 
are described in this subpart.
    (b) An engine family may use the averaging, banking and 
tradingprovisions for HC+NOX and NMHC+NOX 
emissionsif it is subject to regulation under this part with certain 
exceptionsspecified in paragraph (c) of this section. HC+NOX 
andNMHC+NOX credits shall be interchangeable subject to 
thelimitations on credit generation, credit usage, and other 
provisionsdescribed in this subpart.
    (c) A manufacturer shall not include in its calculation of 
creditgeneration and may exclude from its calculation of credit usage, 
anynew engines:
    (1) Which are intended to be exported, unless the manufacturer 
hasreason or should have reason to believe that such engines have been 
orwill be imported in a piece of equipment; or
    (2) Which are subject to state engine emission standards pursuantto 
a waiver granted by EPA under section 209(e) of the Act, unless 
themanufacturer demonstrates to the satisfaction of the 
Administratorthat inclusion of these engines in averaging, banking and 
trading isappropriate.
    (d) For an engine family using credits, a manufacturer may, at 
itsoption, include its entire production of that engine family in 
itscalculation of credit usage for a given model year.
    (e) (1) A manufacturer may certify engine families at FamilyEmission

[[Page 199]]

Limits (FELs) above or below the applicable emissionstandard subject to 
the limitation in paragraph (f) of this section,provided the summation 
of the manufacturer's projected balance ofcredits from all calculations 
and credit transactions for all engineclasses in a given model year is 
greater than or equal to zero, asdetermined under Sec. 90.207. 
Notwithstanding the previoussentence, a manufacturer may project a 
negative balance of credits asallowed under Sec. 90.207(c)(2).
    (2) A manufacturer of an engine family with an FEL exceeding 
theapplicable emission standard must obtain positive emission 
creditssufficient to address the associated credit shortfall via 
averaging,banking, or trading.
    (3) A nonhandheld engine family with an FEL below the 
applicableemission standard may generate positive emission credits 
foraveraging, banking, or trading, or a combination thereof. A 
handheldengine family with an FEL below the applicable emission standard 
maygenerate positive emission credits for averaging or trading. 
Ahandheld engine family meeting the requirements ofSec. 90.205(a)(4) or 
(5), whichever is applicable, maygenerate positive emission credits for 
banking.
    (4) In the case of a Selective Enforcement Audit (SEA) 
failure,credits may be used to cover subsequent production of engines 
for thefamily in question if the manufacturer elects to recertify to a 
higherFEL. Credits may not be used to remedy a nonconformity determined 
byan SEA, except that the Administrator may permit the use of credits 
toaddress a nonconformity determined by an SEA where the use of 
suchcredits is one component of a multi-part remedy for the 
previouslyproduced engines and the remedy, including the use of credits 
and thequantity of credits being used, is such that the Administrator 
issatisfied that the manufacturer has strong and lasting incentive 
toaccurately verify its new engine emission levels and will set or 
resetits FELs for current and future model years so that production 
linecompliance is assured.
    (5) In the case of a production line testing (PLT) failurepursuant 
to subpart H of this part, a manufacturer may revise the FELbased upon 
production line testing results obtained under subpart H ofthis part and 
upon Administrator approval pursuant toSec. 90.122(d). The manufacturer 
may use credits to coverboth past production and subsequent production 
of the engines asneeded as allowed under Sec. 90.207(c)(1).
    (f) No Phase 2 engine family may have a HC + NOX FELthat 
is greater than 32.2 g/kW-hr for Class I engines, 94 g/kW-hr forClass I-
A engines, 50 g/kW-hr for Class I-B engines, 26.8 g/kW-hr forClass II 
engines, 336 g/kW-hr for Class III engines, 275 g/kW-hr forClass IV 
engines, or 186 g/kW-hr for Class V engines.
    (g)(1) Credits generated in a given model year by an engine 
familysubject to the Phase 2 emission requirements may only be used 
inaveraging, banking or trading, as appropriate, for any other 
enginefamily for which the Phase 2 requirements are applicable. 
Creditsgenerated in one model year may not be used for prior model 
years,except as allowed under Sec. 90.207(c).
    (2) For the 2005 model year and for each subsequent model 
year,manufacturers of Class II engines must provide a demonstration 
thatthe production weighted average FEL for HC+NOX 
(includingNMHC+NOX FELs), for all of the manufacturer's Class 
IIengines, will not exceed 13.6 g/kW-hr for the 2005 model year, 13.1g/
kW-hr for the 2006 model year and 12.6 g/kW-hr for the 2007 and 
eachsubsequent Phase 2 model year. Such demonstration shall be subject 
tothe review and approval of the Administrator, shall be provided at 
thetime of the first Class II certification of that model year and 
shallbe based on projected eligible production for that model year.
    (h) Manufacturers must demonstrate compliance under the 
averaging,banking, and trading provisions for a particular model year by 
270days after the end of the model year. Except as provided inSec. 
90.207(c), an engine family generating negative creditsfor which the 
manufacturer does not obtain or generate an adequatenumber of positive 
credits by that date from the same or previousmodel year engines will 
violate the conditions of the certificate

[[Page 200]]

of conformity. The certificate of conformity may be voided abinitio 
pursuant to Sec. 90.123 for this engine family.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr.25, 2000; 69 
FR 1833, Jan. 12, 2004]



Sec. 90.204  Averaging.

    (a) Negative credits from engine families with FELs above 
theapplicable emission standard must be offset by positive credits 
fromengine families having FELs below the applicable emission standard, 
asallowed under the provisions of this subpart. Averaging of credits 
inthis manner is used to determine compliance underSec. 90.207(b). A 
manufacturer may have a negative balanceof credits as allowed under 
Sec. 90.207(c)(2).
    (b) Cross-class averaging of credits is allowed across all classesof 
nonroad spark-ignition engines at or below 19 kW.
    (c) Credits used in averaging for a given model year may beobtained 
from credits generated in the same model year by anotherengine family, 
credits banked in previous model years, or credits ofthe same or 
previous model year obtained through trading subject tothe provisions of 
Sec. 90.205(a). Credits generated underthe previously available 
``Optional transition year averaging,banking, and trading program for 
Phase 2 handheld engines'' ofSec. Sec. 90.212 through 90.220, since 
repealed, may alsobe used in averaging. The restrictions of this 
paragraphnotwithstanding, credits from a given model year may be used 
toaddress credit needs of previous model year engines as allowed 
underSec. 90.207(c).
    (d) The use of credits generated under the early bankingprovisions 
of Sec. 90.205(b) is subject to regulations underthis subpart.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr.25, 2000; 69 
FR 1834, Jan. 12, 2004]



Sec. 90.205  Banking.

    (a)(1) Beginning August 1, 2007, a manufacturer of a Class Iengine 
family with an FEL below the applicable emission standard for agiven 
model year may bank credits in that model year for use inaveraging and 
trading. For new Class I engine families initiallyproduced during the 
period starting August 1, 2003 through July 31,2007, a manufacturer of a 
Class I engine family with an FEL below theapplicable emission standard 
for a given model year may bank creditsin that model year for use in 
averaging and trading.
    (2) Beginning with the 2000 model year, a manufacturer of a ClassI-A 
or Class I-B engine family with an FEL below the applicableemission 
standard for a given model year may bank credits in thatmodel year for 
use in averaging and trading.
    (3) Beginning with the 2001 model year, a manufacturer of a ClassII 
engine family with an FEL below the applicable emission standardfor a 
given model year may bank credits in that model year for use inaveraging 
and trading.
    (4) For the 2002 model year, a manufacturer of a Class III orClass 
IV engine family may bank credits for use in future model yearaveraging 
and trading from only those Class III or Class IV enginefamilies with an 
FEL at or below 72 g/kW-hr. Beginning with the 2003model year, a 
manufacturer of a Class III or Class IV engine familywith an FEL below 
the applicable emission standard may generatecredits for use in future 
model year averaging and trading.
    (5) Beginning with the 2004 model year, a manufacturer of a ClassV 
engine family with an FEL below the applicable emission standard 
maygenerate credits for use in future model year averaging and trading.
    (6) Negative credits may be banked only according to therequirements 
under Sec. 90.207(c).
    (b)(1) For Class I engine families initially produced during 
theperiod beginning with the 1999 model year and prior to August 1, 
2003,a manufacturer may bank early credits for engines with HC 
+NOX FELs below 16.1 g/kW-hr. All early credits for suchClass 
I engines shall be calculated against a HC + NOXlevel of 20.5 
g/kW-hr and may continue to be calculated against the20.5 g/kW-hr level 
until August 1, 2007.
    (2) Beginning with the 1999 model year and prior to the 
applicabledate listed in paragraph (a) of this section for Class II 
engines, amanufacturer may bank early credits for all Class II

[[Page 201]]

engines withHC+NOX FELs below 12.1 g/kW-hr. All early credits 
forClass II engines shall be calculated against a HC+NOXlevel 
of 18.0 g/kW-hr.
    (3) Beginning with the 2000 model year and prior to the 
applicabledate listed in paragraph (a) of this section for Class III 
engines, amanufacturer may bank early credits for all Class III engines 
withHC+NOX FELs below 72 g/kW-hr. All early credits for 
ClassIII engines shall be calculated against a HC+NOX level 
of238 g/kW-hr.
    (4) Beginning with the 2000 model year and prior to the 
applicabledate listed in paragraph (a) of this section for Class IV 
engines, amanufacturer may bank early credits for all Class IV engines 
withHC+NOX FELs below 72 g/kW-hr. All early credits for 
ClassIV engines shall be calculated against a HC+NOX level 
of196 g/kW-hr.
    (5) Beginning with the 2000 model year and prior to the 
applicabledate listed in paragraph (a) of this section for Class V 
engines, amanufacturer may bank early credits for all Class V engines 
withHC+NOX FELs below 87 g/kW-hr. All early credits for 
ClassV engines shall be calculated against a HC+NOX level 
of143 g/kW-hr.
    (6) Engines certified under the early banking provisions of 
thisparagraph are subject to all of the requirements of this 
partapplicable to Phase 2 engines.
    (c) A manufacturer may bank actual credits only after the end ofthe 
model year and after EPA has reviewed the manufacturer's end-of-year 
reports. During the model year and before submittal of the end-of-year 
report, credits originally designated in the certificationprocess for 
banking will be considered reserved and may beredesignated for trading 
or averaging in the end-of-year report andfinal report.
    (d) Credits declared for banking from the previous model year 
thathave not been reviewed by EPA may be used in averaging or 
tradingtransactions. However, such credits may be revoked at a later 
timefollowing EPA review of the end-of-year report or any subsequent 
auditactions.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr.25, 2000; 69 
FR 1834, Jan. 12, 2004]



Sec. 90.206  Trading.

    (a) An engine manufacturer may exchange emission credits withother 
engine manufacturers in trading, subject to the tradingrestriction 
specified in Sec. 90.207(c)(2).
    (b) Credits for trading can be obtained from credits banked 
inprevious model years or credits generated during the model year of 
thetrading transaction.
    (c) Traded credits can be used for averaging, banking, or 
furthertrading transactions, subject to Sec. 90.205(a).
    (d) Traded credits are subject to the limitations on use for 
pastmodel years, as set forth in Sec. 90.204(c).
    (e) In the event of a negative credit balance resulting from 
atransaction, both the buyer and the seller are liable, except in 
casesinvolving fraud. Certificates of all engine families participating 
ina negative trade may be voided ab initio pursuant toSec. 90.123.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24309, Apr.25, 2000; 69 
FR 1834, Jan. 12, 2004]



Sec. 90.207  Credit calculation and manufacturer compliance with emissionstandards.

    (a) For each engine family, HC+NOX[NMHC+NOX] 
certification emission credits (positive ornegative) are to be 
calculated according to the following equation androunded to the nearest 
gram. Consistent units are to be usedthroughout the equation.

Credits = Productionx(Standard--FEL)xPowerxUseful lifexLoad Factor

Where:

Production = eligible production as defined in this part. 
Annualproduction projections are used to project credit availability 
forinitial certification. Eligible production volume is used 
indetermining actual credits for end-of-year compliance determination.
Standard = the current and applicable Small SI engineHC+NOX 
(NMHC+NOX) emission standard in gramsper kilowatt hour as 
determined in Sec. 90.103 or, for earlycredits, the applicable emission 
level as specified inSec. 90.205(b).
FEL = the family emission limit for the engine family in grams 
perkilowatt hour.
Power = the maximum modal power of the certification test engine,in 
kilowatts, as calculated from the applicable federal test procedureas 
described in this part.

[[Page 202]]

Useful Life = the useful life in hours corresponding to theuseful life 
category for which the engine family was certified.
Load Factor = 47 percent (i.e., 0.47) for Test Cycle A and TestCycle B, 
and 85 percent (i.e., 0.85) for Test Cycle C. For approvedalternate test 
procedures, the load factor must be calculatedaccording to the following 
formula:
[GRAPHIC] [TIFF OMITTED] TN05AP99.000

Where:

%MTT modei = percent of the maximum FTP torque formode i.
%MTS modei = percent of the maximum FTP enginerotational 
speed for mode i.
WF modei = the weighting factor for mode i.

    (b) Manufacturer compliance with the emission standards isdetermined 
on a corporate average basis at the end of each model year.A 
manufacturer is in compliance when the sum of positive and 
negativeemission credits it holds is greater than or equal to zero, 
exceptthat the sum of positive and negative credits may be less than 
zero asallowed under paragraph (c) of this section.
    (c)(1) If, as a result of production line testing as required 
insubpart H of this part, an engine family is determined to be 
innoncompliance pursuant to Sec. 90.710, the manufacturer mayraise its 
FEL for past and future production as necessary. Further, amanufacturer 
may carry a negative credit balance (known also as acredit deficit) for 
the subject class and model year and for the nextthree model years. The 
credit deficit may be no larger than thatcreated by the nonconforming 
family. If the credit deficit stillexists after the model year following 
the model year in which thenonconformity occurred, the manufacturer must 
obtain and apply creditsto offset the remaining credit deficit at a rate 
of 1.2 grams for eachgram of deficit within the next two model years. 
The provisions ofthis paragraph are subject to the limitations in 
paragraph (d) of thissection.
    (c)(2) For model years 2004 through 2007, an engine manufacturerwho 
certifies at least one Class V engine family in a given model yearmay 
carry forward a credit deficit for four model years, but must notcarry 
such deficit into the fifth year, provided the deficit isattributable to 
negative credits from its Class V engine families,subject to the 
following provisions:
    (i) Credit deficits are permitted for model years 2004 through2007 
but cannot occur for more than two consecutive model years for agiven 
manufacturer;
    (ii)(A) If an engine manufacturer calculates that it has a 
creditdeficit for a given model year, it must obtain sufficient credits 
fromengine families produced by itself or another manufacturer in a 
modelyear no later than the fourth model year following the model year 
forwhich it calculated the credit deficit. (Example: if a 
manufacturercalculates that it has a credit deficit for the 2004 model 
year, itmust obtain sufficient credits to offset that deficit from its 
ownproduction or that of other manufacturers' 2008 or earlier model 
yearengine families.);
    (B) An engine manufacturer carrying the deficit into the firstmodel 
year following the year in which it was generated must generateor obtain 
credits to offset that deficit and apply them to the deficitat a rate of 
1:1. An engine manufacturer carrying the deficit into thesecond and 
third model years must generate or obtain credits to offsetthat deficit 
and apply them to the deficit at a rate of 1.1:1(i.e., deficits carried 
into the second and third model yearmust be repaid with credits equal to 
110 percent of the deficit).Deficits carried into the fourth model year 
must be offset by creditsat a rate of 1.2:1 (i.e., 120 percent of the 
deficit);
    (iii) An engine manufacturer who has a credit deficit may usecredits 
from any class of spark-ignition nonroad engines at or below19 kilowatts 
generated or obtained through averaging, banking ortrading to offset the 
credit deficit; and,

[[Page 203]]

    (iv) An engine manufacturer must not bank credits for futureuse or 
trade credits to another engine manufacturer during a modelyear in which 
it has generated a deficit or into which it has carrieda deficit.
    (d) Regulations elsewhere in this part notwithstanding, if anengine 
manufacturer experiences two or more production line testingfailures 
pursuant to the regulations in subpart H of this part in agiven model 
year, the manufacturer may raise the FEL of previouslyproduced engines 
only to the extent that such engines represent nomore than 10 percent of 
the manufacturer's total eligible productionfor that model year, as 
determined on the date when the FEL isadjusted. For any additional 
engine families determined to be innoncompliance, the manufacturer must 
conduct offsetting projectsapproved in advance by the Administrator.
    (e) If, as a result of production line testing under this subpart,a 
manufacturer desires to lower its FEL it may do so subject toSec. 
90.708(c).
    (f) Except as allowed at paragraph (c) of this section, when 
amanufacturer is not in compliance with the applicable emissionstandard 
by the date 270 days after the end of the model year,considering all 
credit calculations and transactions completed bythen, the manufacturer 
will be in violation of the regulations in thispart and EPA may, 
pursuant to Sec. 90.123, void abinitio the certificates of engine 
families for which themanufacturer has not obtained sufficient positive 
emission credits.
    (g) Credit deficits. (1) Manufacturers must offset any deficitsfor a 
given model year by the reporting deadline for the fourth modelyear 
following the model year in which the deficits were generated asrequired 
in paragraph (c)(2) of this section. Manufacturers may offsetdeficits by 
generating credits or acquiring credits generated byanother 
manufacturer.
    (2)(i) Failure to meet the requirements of paragraph (c)(2) ofthis 
section within the required timeframe for offsetting deficitswill be 
considered to be a failure to satisfy the conditions uponwhich the 
certificate(s) was issued and the individual noncomplyingengines not 
covered by the certificate must be determined according tothis section.
    (ii) If deficits are not offset within the specified time period,the 
number of engines which could not be covered in the calculation toshow 
compliance with the fleet average HC+NOX standard inthe model 
year in which the deficit occurred and thus are not coveredby the 
certificate must be calculated using the methodology describedin 
paragraph (g)(2)(iii) of this section.
    (iii) EPA will determine the engines for which the condition onthe 
certificate was not satisfied by designating engines in the ClassV 
engine family with the highest HC+NOX FELs first 
andcontinuing progressively downward through the Class V engine 
familiesuntil a number of engines having a credit need, as calculated 
underparagraph (a) of this section, equal to the remaining deficit 
isreached. If this calculation determines that only a portion of 
enginesin a Class V engine family contribute to the deficit situation, 
thenEPA will designate a subset of actual engines in that engine family 
asnot covered by the certificate, starting with the last engine 
producedand counting backwards. EPA may request additional information 
fromthe manufacturer that would help identify the actual engine 
notcovered by the certificate.
    (iv) In determining the engine count, EPA will calculate the massof 
credits based on the factors identified in paragraph (a) of thissection.
    (3) If a manufacturer is purchased by, merges with or 
otherwisecombines with another manufacturer, the manufacturer continues 
to beresponsible for offsetting any deficits outstanding within 
therequired time period. Any failure to offset the deficits will 
beconsidered to be a violation of paragraph (g)(1) of this section 
andmay subject the manufacturer to an enforcement action for sale 
ofengines not covered by a certificate, pursuant to paragraph (g)(2) 
ofthis section.
    (4) If a manufacturer that has a deficit ceases production 
ofhandheld engines, the manufacturer will be considered immediately 
inviolation of paragraph (g)(1) of this section and may be subject to 
anenforcement action for

[[Page 204]]

sale of engines not covered by acertificate, pursuant to paragraph 
(g)(2) of this section
    (5) For purposes of calculating the statute of limitations, 
aviolation of the requirements of paragraph (g)(1) of this section, 
afailure to satisfy the conditions upon which a certificate(s) wasissued 
and hence a sale of engines not covered by the certificate, alloccur 
upon the expiration of the deadline for offsetting deficitsspecified in 
paragraph (g)(1) of this section.

[64 FR 15239, Mar. 30, 1999; 64 FR 16526, Apr. 5, 1999, asamended at 65 
FR 24309, Apr. 25, 2000; 69 FR 1834, Jan. 12, 2004]



Sec. 90.208  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Submit a statement that the engines for which certification 
isrequested will not, to the best of the manufacturer's belief, causethe 
manufacturer to be in noncompliance under Sec. 90.207(b)when all 
credits are calculated for the manufacturer's enginefamilies.
    (2) Declare an FEL for each engine family for 
HC+NOX(NMHC+NOX). The FEL must have the same 
number ofsignificant digits as the emission standard.
    (3) Indicate the projected number of credits generated/needed 
forthis family; the projected applicable eligible annual 
productionvolume, and the values required to calculate credits as given 
inSec. 90.207.
    (4) Submit calculations in accordance with Sec. 90.207of projected 
emission credits (positive or negative) based on annualproduction 
projections for each family.
    (5) (i) If the engine family is projected to have negativeemission 
credits, state specifically the source (manufacturer/enginefamily or 
reserved) of the credits necessary to offset the creditdeficit according 
to projected annual production.
    (ii) If the engine family is projected to generate credits, 
statespecifically (manufacturer/engine family or reserved) where 
theprojected annual credits will be applied.
    (iii) The manufacturer may supply the information required by 
thissection in the form of a spreadsheet detailing the 
manufacturer'sannual production plans and the credits generated or 
consumed by eachengine family.
    (b) All certificates issued are conditional upon 
manufacturercompliance with the provisions of this subpart both during 
and afterthe model year of production.
    (c) Failure to comply with all provisions of this subpart will 
beconsidered to be a failure to satisfy the conditions upon which 
thecertificate was issued, and the certificate may be determined to 
bevoid ab initio pursuant to Sec. 90.123.
    (d) The manufacturer bears the burden of establishing to 
thesatisfaction of the Administrator that the conditions upon which 
thecertificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such credits may be revoked based on reviewof 
end-of-year reports, follow-up audits, and any other verificationsteps 
considered appropriate by the Administrator.



Sec. 90.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed records for each 
enginefamily:
    (1) EPA engine family identification code;
    (2) Family Emission Limit (FEL) or FELs where FEL changes havebeen 
implemented during the model year;
    (3) Maximum modal power for the certification test engine;
    (4) Projected production volume for the model year; and
    (5) Records appropriate to establish the quantities of enginesthat 
constitute eligible production as defined in Sec. 90.3for each FEL.
    (b) Any manufacturer producing an engine family participating 
intrading reserved credits must maintain the following records on 
anannual basis for each such engine family:
    (1) The engine family;
    (2) The actual applicable production volume;
    (3) The values required to calculate credits as given inSec. 
90.207;
    (4) The resulting type and number of credits generated/required;

[[Page 205]]

    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (c) The manufacturer must retain all records required to 
bemaintained under this section for a period of eight years from the 
duedate for the end-of-model year report. Records may be retained as 
hardcopy or reduced to microfilm, ADP diskettes, and so forth, 
dependingon the manufacturer's record retention procedure; provided, 
that inevery case all information contained in the hard copy is 
retained.
    (d) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records, or 
submitinformation not specifically required by this section, if 
otherwisepermitted by law.
    (e) Pursuant to a request made by the Administrator, themanufacturer 
must submit to the Administrator the information that themanufacturer is 
required to retain.
    (f) EPA may, pursuant to Sec. 90.123, void abinitio a certificate 
of conformity for an engine family for whichthe manufacturer fails to 
retain the records required in this sectionor to provide such 
information to the Administrator upon request.



Sec. 90.210  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine 
family,the engine class, the actual production volume, the values 
required tocalculate credits as given in Sec. 90.207, and the number 
ofcredits generated/required. Manufacturers must also submit how 
andwhere credit surpluses were dispersed (or are to be banked) and/or 
howand through what means credit deficits were met. Copies of 
contractsrelated to credit trading must be included or supplied by the 
broker,if applicable. The report must include a calculation of 
creditbalances to show that the credit summation for all engines is 
equal toor greater than zero (or less than zero in cases of negative 
creditbalances as permitted in Sec. 90.207(c)). For model year2005 and 
later, the report must include a calculation of theproduction weighted 
average HC+NOX (includingNMHC+NOX) FEL for Class 
II engine families to showcompliance with the provisions of Sec. 
90.203(g)(2).
    (b) The calculation of eligible production for end-of-year andfinal 
reports must be based on engines produced for the United Statesmarket, 
excluding engines which are subject to state emissionstandards pursuant 
to a waiver granted by EPA under section 209(e) ofthe Act. Upon advance 
written request, the Administrator will considerother methods to track 
engines for credit calculation purposes thatprovide high levels of 
confidence that eligible production or salesare accurately counted.
    (c)(1)End-of-year reports must be submitted within 90 days of theend 
of the model year to: Manager, Engine Compliance Programs Group(6403-J), 
U.S. Environmental Protection Agency, Washington, DC20460.
    (2) Unless otherwise approved by the Administrator, final 
reportsmust be submitted within 270 days of the end of the model year 
to:Manager, Engine Compliance Programs Group (6403-J), U.S.Environmental 
Protection Agency, Washington, DC 20460.
    (d) Failure by a manufacturer to submit any end-of-year or 
finalreports in the specified time for any engines subject to 
regulationunder this part is a violation of Sec. 90.1003(a)(2) 
andsection 213(d) of the Clean Air Act for each engine.
    (e) A manufacturer generating credits for banking only who failsto 
submit end-of-year reports in the applicable specified time period(90 
days after the end of the model year) may not use the creditsuntil such 
reports are received and reviewed by EPA. Use of projectedcredits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation, may be correctedin the 
final report.
    (g) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end-of-year or final report previously submitted to 
EPAunder this section, the manufacturer's credits and credit 
calculationsmust be recalculated. Erroneous positive credits will be 
void exceptas provided in paragraph (h) of this section. Erroneous 
negative

[[Page 206]]

credit balances may be adjusted by EPA.
    (h) If EPA review determines a reporting error in themanufacturer's 
favor (that is, resulting in an increased creditbalance) or if the 
manufacturer discovers such an error within 270days of the end of the 
model year, EPA shall restore the credits foruse by the manufacturer.



Sec. 90.211  Request for hearing.

    An engine manufacturer may request a hearing on theAdministrator's 
voiding of the certificate underSec. Sec. 90.203(h), 90.206(e), 
90.207(f), 90.208(c), or90.209(f), pursuant to Sec. 90.124. The 
procedures ofSec. 90.125 shall apply to any such hearing.



              Subpart D_Emission Test Equipment Provisions



Sec. 90.301  Applicability.

    (a) This subpart describes the equipment required in order toperform 
exhaust emission tests on new nonroad spark-ignition enginesand vehicles 
subject to the provisions of subpart A of this part.Certain text in this 
subpart is identified as pertaining to Phase 1 orPhase 2 engines. Such 
text pertains only to engines of the specifiedPhase. If no indication of 
Phase is given, the text pertains to allengines, regardless of Phase.
    (b) Exhaust gases, either raw or dilute, are sampled while thetest 
engine is operated using a steady state test cycle on an 
enginedynamometer. The exhaust gases receive specific component 
analysisdetermining concentration of pollutant. Emission concentrations 
areconverted to mass emission rates in grams per hour based on 
eitherfuel flow, fuel flow and engine intake air flow, or exhaust 
volumeflow. Weighted emission rates are reported as grams per brake-
kilowatthour (g/kW-hr). See subpart E of this part for a complete 
descriptionof the test procedure.
    (c) Additional information about system design, 
calibrationmethodologies, and so forth, for raw gas sampling can be 
found in 40CFR part 1065. Examples for system design, calibration 
methodologies,and so forth, for dilute exhaust gas sampling can be found 
in 40 CFRpart 1065.
    (d) For Phase 2 Class I, Phase 2 Class I-B, and Phase 2Class II 
natural gas fueled engines, use the procedures of 40 CFR part1065 to 
measure nonmethane hydrocarbon (NMHC) exhaust emissions fromPhase 2 
Class I, Phase 2 Class I-B, and Phase 2 Class IInatural gas fueled 
engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar.30, 1999; 65 
FR 24312, Apr. 25, 2000; 70 FR 40448, July 13, 2005]



Sec. 90.302  Definitions.

    The definitions in Sec. 90.3 apply to this subpart. Thefollowing 
definitions also apply to this subpart.
    Intermediate speed means the engine speed which is 85percent of the 
rated speed.
    Natural gas means a fuel whose primary constituent ismethane.
    Rated speed means the speed at which the manufacturerspecifies the 
maximum rated power of an engine.

[64 FR 15243, Mar. 30, 1999]



Sec. 90.303  Symbols, acronyms, abbreviations.

    (a) The acronyms and abbreviations in Sec. 90.5 apply tothis 
subpart.
    (b) The symbols in Table 1 in Appendix A of this subpart apply 
tothis subpart.



Sec. 90.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for 
exhaustemissions. Engines are operated on dynamometers meeting 
thespecification given in Sec. 90.305.
    (b) The exhaust is tested for gaseous emissions using a raw 
gassampling system as described in Sec. 90.414 or a constantvolume 
sampling (CVS) system as described in Sec. 90.421.Both systems require 
analyzers (see paragraph (c) of this section)specific to the pollutant 
being measured.
    (c) Analyzers used are a non-dispersive infrared (NDIR) 
absorptiontype for carbon monoxide and carbon dioxide analysis; 
paramagnetic(PMD), zirconia (ZRDO), or electrochemical type (ECS) for 
oxygenanalysis; a flame ionization (FID) or heated flame ionization 
(HFID)type for hydrocarbon analysis; and a chemiluminescent detector 
(CLD)or heated

[[Page 207]]

chemiluminescent detector (HCLD) for oxides of nitrogenanalysis.



Sec. 90.305  Dynamometer specifications and calibration accuracy.

    (a) Dynamometer specifications. The dynamometer test standand other 
instruments for measurement of speed and power output mustmeet the 
engine speed and torque accuracy requirements shown in Table2 in 
Appendix A of this subpart. The dynamometer must be capable ofperforming 
the test cycle described in Sec. 90.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometertest stand 
and other instruments for measurement of power output mustmeet the 
calibration frequency shown in Table 2 in Appendix A of thissubpart.
    (2) A minimum of three calibration weights for each range used 
isrequired. The weights must be equally spaced and traceable to 
within0.5 percent of National Institute for Standards and Testing 
(NIST)weights. Laboratories located in foreign countries may 
certifycalibration weights to local government bureau standards.



Sec. 90.306  Dynamometer torque cell calibration.

    (a)(1) Any lever arm used to convert a weight or a force through 
adistance into a torque must be used in a horizontal position 
forhorizontal shaft dynamometers (five degrees). 
For verticalshaft dynamometers, a pulley system may be used to convert 
thedynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibrationweight 
to be used by:

IT=Moment Arm (meters) x Calibration Weight (Newtons)

    (3) Attach each calibration weight specified inSec. 90.305(b)(2) to 
the moment arm at the calibrationdistance determined in paragraph (a)(2) 
of this section. Record thepower measurement equipment response (N-m) to 
each weight.
    (4) Compare the torque value measured to the calculated torque.
    (5) The measured torque must be within two percent of thecalculated 
torque.
    (6) If the measured torque is not within two percent of 
thecalculated torque, adjust or repair the system. Repeat steps 
inparagraphs (a)(1) through (a)(6) of this section with the adjusted 
orrepaired system.
    (b) Option. A master load-cell or transfer standard may be used 
toverify the torque measurement system.
    (1) The master load-cell and read out system must be calibratedusing 
weights specified in Sec. 90.305(b)(2).
    (2) Attach the master load-cell and loading system.
    (3) Load the dynamometer to a minimum of three equally spacedtorque 
values as indicated by the master load-cell for each in-userange used.
    (4) The in-use torque measurement must be within two percent ofthe 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the 
mastertorque, adjust or repair the system. Repeat steps in paragraphs 
(b)(2)through (b)(4) of this section with the adjusted or repaired 
system.
    (c) Calibrated resistors may not be used for engine flywheeltorque 
transducer calibration, but may be used to span the transducerprior to 
engine testing.
    (d) Other engine dynamometer system calibrations such as speed 
areperformed as specified by the dynamometer manufacturer or as 
dictatedby good engineering practice.



Sec. 90.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity 
tomaintain the engine at normal operating temperatures as prescribed 
bythe engine manufacturer. Auxiliary fan(s) may be used to 
maintainsufficient engine cooling during engine dynamometer operation.



Sec. 90.308  Lubricating oil and test fuels.

    (a) Lubricating oil. Use the engine lubricating oil whichmeets the 
engine manufacturer's specifications for a particular engineand intended 
usage.
    (1) Manufacturers must use engine lubricants representative 
ofcommercially available engine lubricants.

[[Page 208]]

    (2) For 2-stroke engines, the fuel/oil mixture ratio must bethat 
which is recommended by the manufacturer.
    (b) Test Fuels--Certification. (1) The manufacturermust use gasoline 
having the specifications, or substantiallyequivalent specifications 
approved by the Administrator, as specifiedin Table 3 in Appendix A of 
this subpart for exhaust emission testingof gasoline fueled engines. As 
an option, manufacturers may use thefuel specified in 40 CFR part 1065, 
subpart H, for gasoline-fueledengines.
    (2) Alternative fuels, such as natural gas, propane, and 
methanol,used for exhaust emission testing and service accumulation 
ofalternative fuel spark-ignition engines must be representative 
ofcommercially available alternative fuels.
    (i) The manufacturer shall recommend the alternative fuel to beused 
for certification testing and engine service accumulation inaccordance 
with paragraph (b)(3) of this section.
    (ii) The Administrator shall determine the alternative fuel to 
beused for testing and engine service accumulation, taking 
intoconsideration the alternative fuel recommended by the manufacturer.
    (3) Other fuels may be used for testing provided:
    (i) They are commercially viable;
    (ii) Information acceptable to the Administrator is provided toshow 
that only the designated fuel would be used in customer service;and
    (iii) Fuel specifications are approved in writing by 
theAdministrator prior to the start of testing.
    (c) Test fuels--service accumulation and aging.Unleaded gasoline 
representative of commercial gasoline generallyavailable through retail 
outlets must be used in service accumulationand aging for gasoline-
fueled spark-ignition engines. As analternative, the certification test 
fuels specified under paragraph(b) of this section may be used for 
engine service accumulation andaging. Leaded fuel may not be used during 
service accumulation oraging.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar.30, 1999; 70 
FR 40448, July 13, 2005]



Sec. 90.309  Engine intake air temperature measurement.

    (a) The measurement location must be within 10 cm of the 
engineintake system (i.e., the air cleaner, for most engines.)
    (b) The temperature measurements must be accurate to within2 [deg]C.



Sec. 90.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake 
airother than the ambient air in the test cell (i.e., air which has 
beenpumped directly to the engine air intake system). For engines 
whichuse ambient test cell air for the engine intake air, the ambient 
testcell humidity measurement may be used.
    (a) Humidity conditioned air supply. Air that has had itsabsolute 
humidity altered is considered humidity-conditioned air. Forthis type of 
intake air supply, the humidity measurements must be madewithin the 
intake air supply system and after the humidityconditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements inunconditioned 
intake air supply systems must be made in the intake airstream entering 
the supply system. Alternatively, the humiditymeasurements can be 
measured within the intake air supply stream.



Sec. 90.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levelsencountered 
by the test engine throughout the test sequence may not beless than 20 
[deg]C or more than 30 [deg]C. All engines must beinstalled on the test 
bed at their design installation angle toprevent abnormal fuel 
distribution.
    (2) Calculate all volumes and volumetric flow rates at 
standardconditions for temperature and pressure, and use these 
conditionsconsistently throughout all calculations. Standard conditions 
fortemperature and pressure are 25 [deg]C and 101.3 kPa.
    (b) Engine test conditions. Measure the absolute 
temperature(designated as T and expressed in Kelvin) of the engine air 
at theinlet to the engine and the dry atmospheric pressure (designated 
asps and expressed in kPa), and determine the parameter 
faccording to the

[[Page 209]]

following provisions for naturally aspiratedengines:
[GRAPHIC] [TIFF OMITTED] TR03JY95.009


For a certification test to be recognized as valid, theparameter f shall 
be between the limits as shown below:0.96
Sec. 90.312  Analytical gases.

    (a) The shelf life of a calibration gas may not be exceeded. 
Theexpiration date stated by the gas supplier must be recorded.
    (b) Pure gases. The required purity of the gases is definedby the 
contamination limits specified in this subsection. Thefollowing gases 
must be available for operation:
    (1) Purified nitrogen, also refered to as ``zero-gradenitrogen'' 
(Contamination <= 1 ppm C, <= 1 ppm CO, <=400 ppm CO2, <= 0.1 
ppm NO);
    (2) Purified oxygen (Purity 99.5 percent vol O2);
    (3) Hydrogen-helium mixture (40 2 percent 
hydrogen,balance helium) (Contamination <= 1 ppm C, <= 400 ppm CO);
    (4) Purified synthetic air, also refered to as ``zeroair'' or ``zero 
gas'' (Contamination <= 1 ppm C,<= 1 ppm CO, <= 400 ppm CO2, 
<= 0.1 ppm NO)(Oxygen content between 18-21 percent vol.).
    (c) Calibration and span gases. (1) Calibration gas valuesare to be 
derived from NIST ``Standard ReferenceMaterials'' (SRM's) and are to be 
single blends as specified inthis subsection.
    (2) Mixtures of gases having the following chemical compositionsmust 
be available:

C3 H8 and purified synthetic air and/
    orC3 H8 and purified nitrogen;
CO and purified nitrogen;
NOX and purified nitrogen (the amount ofNO2 
    contained in this calibration gas must not exceed fivepercent of the 
    NO content);
CO2 and purified nitrogen.

    Note: For the HFID or FID the manufacturer may choose to useas a 
diluent span gas and the calibration gas either purifiedsynthetic air or 
purified nitrogen. Any mixture of C3H8 and 
purified synthetic air which contains aconcentration of propane higher 
than what a gas supplier considers tobe safe may be substituted with a 
mixture of C3H8 and purified nitrogen. However, 
the manufacturer mustbe consistent in the choice of diluent (zero air or 
purified nitrogen)between the calibration and span gases. If a 
manufacturer chooses touse C3 H8 and purified 
nitrogen for thecalibration gases, then purified nitrogen must be the 
diluent for thespan gases.

    (3) The true concentration of a span gas must be withintwo percent of the NIST gas standard. The true 
concentrationof a calibration gas must be within one percent of the NISTgas standard. The use of 
precision blending devices (gas dividers) toobtain the required 
calibration gas concentrations is acceptable. Giveall concentrations of 
calibration gas on a volume basis (volumepercent or volume ppm).
    (4) The gas concentrations used for calibration and span may alsobe 
obtained by means of a gas divider, diluting either with 
purifiedN2 or with purified synthetic air. The accuracy of 
themixing device must be such that the concentration of the diluted 
gasesmay be determined to within two percent.
    (d) Oxygen interference check gases must contain propane with 
350ppmC 75 ppmC hydrocarbon. Determine the 
concentration valueto calibration gas tolerances by chromatographic 
analysis of totalhydrocarbons plus impurities or by dynamic blending. 
For gasolinefueled engines, oxygen contentration must be between 0 and 1 
percentO2. Nitrogen must be the predominant diluent with 
thebalance oxygen.
    (e) Fuel for the hydrocarbon flame ionization detector (HC-FID)must 
be a blend of 40 two percent hydrogen with the 
balancebeing helium. The mixture must contain less than one ppm 
equivalentcarbon response; 98 to 100 percent hydrogen fuel may be used 
withadvance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration ofoxygen must 
be within one mole percent of the oxygen concentration ofthe burner air 
used in the latest oxygen interference check (percentO2 I), 
see Sec. 90.316(d). If the difference inoxygen concentration is greater 
than one mole percent, then the oxygeninterference must be checked and, 
if necessary, the analyzer

[[Page 210]]

adjusted to meet the percent O2 I requirements. Theburner air 
must contain less than two ppmC hydrocarbon.



Sec. 90.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the followinginstruments:
    (1) Carbon monoxide (CO) analysis. (i) The carbon monoxideanalyzer 
shall be of the non-dispersive infrared (NDIR) absorptiontype.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon dioxide (CO2) analysis. (i) Thecarbon dioxide 
analyzer shall be of the non-dispersive infrared (NDIR)absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) Oxygen (O2) analysis. Oxygen(O2) analyzers 
may be of the paramagnetic (PMD), zirconia(ZRDO) or electrochemical type 
(ECS).
    (4) Hydrocarbon (HC) analysis. (i) For Raw Gas Sampling, 
thehydrocarbon analyzer shall be of the heated flame ionization 
(HFID)type. For constant volume sampling, the hydrocarbon analyzer may 
be ofthe flame ionization (FID) type or of the heated flame 
ionization(HFID) type.
    (ii) For the HFID system, if the temperature of the exhaust gas 
atthe sample probe is below 190 [deg]C, the temperature of the 
valves,pipe work, and so forth, must be controlled so as to maintain a 
walltemperature of 190 [deg]C 11 [deg]C. If the 
temperature ofthe exhaust gas at the sample probe is above 190 [deg]C, 
thetemperature of the valves, pipe work, and so forth, must be 
controlledso as to maintain a wall temperature greater than 180 [deg]C.
    (iii) For the HFID analyzer, the detector, oven, and sample-handling 
components within the oven must be suitable for continuousoperation at 
temperatures to 200 [deg]C. It must by capable ofmaintaining temperature 
within 5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications inSec. 
90.312.
    (v) The percent of oxygen interference must be less than 
threepercent, as specified in Sec. 90.316(d).
    (5) Oxides of nitrogen (NOX) analysis.
    (i) This analysis device consists of the following items:
    (A) A NO2 to NO converter. The NO2 to 
NOconverter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX 
converter(optional).
    (C) A chemiluminescent detector (CLD) or heated 
chemiluminescentdetector (HCLD).
    (ii) The quench interference must be less than 3.0 percent 
asmeasured in Sec. 90.325.
    (b) Other analyzers and equipment. Other types of analyzersand 
equipment may be used if shown to yield equivalent results and 
ifapproved in advance by the Administrator.
    (c) The following requirements must be incorporated as indicatedin 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be madeon a 
dry basis (for raw exhaust measurement only). Specificrequirements for 
the means of drying the sample can be found inSec. 90.313(e).
    (2) Calibration or span gases for the NOX 
measurementsystem must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment mustbe 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable methodof 
removing water from the sample. Water removal by condensation 
isacceptable. If water is removed by condensation, the sample 
gastemperature or sample dew point must be monitored either within 
thewater trap or downstream and its temperature must not exceed 7[deg]C. 
A water trap performing this function is an acceptablemethod. Means 
other than condensation may be used only with priorapproval from the 
Administrator.



Sec. 90.314  Analyzer accuracy and specifications.

    (a) Measurement and accuracy--general. The analyzersmust have a 
measuring range which allows them to measure theconcentrations of the 
exhaust gas sample pollutants with theaccuracies shown in Table 2 in 
Appendix A of this subpart.
    (1) Precision. The precision of the analyzer must be, atworst, two 
percent of full-scale concentration for each range

[[Page 211]]

used. The precision is defined as 2.5 times the standarddeviation(s) of 
10 repetitive responses to a given calibration or spangas.
    (2) Noise. The analyzer peak-to-peak response to zero andcalibration 
or span gases over any 10-second period must not exceedtwo percent of 
full-scale chart deflection on all ranges used.
    (3) Zero drift. The analyzer zero-response drift during aone-hour 
period must be less than two percent of full-scale chartdeflection on 
the lowest range used. The zero-response is defined asthe mean response 
including noise to a zero-gas during a 30-secondtime interval.
    (4) Span drift. The analyzer span drift during a one-hourperiod must 
be less than two percent of full-scale chart deflection onthe lowest 
range used. The analyzer span is defined as the differencebetween the 
span-response and the zero-response. The span-response isdefined as the 
mean response including noise to a span gas during a30-second time 
interval.
    (b) Operating procedure for analyzers and sampling system.Follow the 
start-up and operating instructions of the instrumentmanufacturer or use 
good engineering practice. Adhere to the minimumrequirements given in 
Sec. Sec. 90.316 through 90.325 andSec. 90.409.
    (c) Emission measurement accuracy--Bag sampling. (1)Good engineering 
practice dictates that exhaust emission sampleanalyzer readings below 15 
percent of full-scale chart deflectionshould generally not be used.
    (2) Some high resolution read-out systems, such as computers, 
dataloggers, and so forth, can provide sufficient accuracy and 
resolutionbelow 15 percent of full scale. Such systems may be used 
provided thatadditional calibrations are made to ensure the accuracy of 
thecalibration curves. The following procedure for calibration below 
15percent of full scale may be used:

    Note to paragraph (c): If a gas divider is used, the gasdivider must 
conform to the accuracy requirements as follows. The useof precision 
blending devices (gas dividers) to obtain the requiredcalibration gas 
concentrations is acceptable, provided that theblended gases are 
accurate to within 1.5 percent of NIST 
gasstandards or other gas standards which have been approved by 
theAdministrator. This accuracy implies that primary gases used 
forblending must be ``named'' to an accuracy of at leastone percent, traceable to NIST or other approved 
gasstandards.

    (i) Span the full analyzer range using a top range calibrationgas. 
The span gases must be accurate to within two 
percent ofNIST gas standards or other gas standards which have been 
approved bythe Administrator.
    (ii) Generate a calibration curve according to, and meeting 
therequirements, of the sections describing analyzer calibrations 
whichare found in Sec. Sec. 90.316, 90.317, 90.318, and 90.320.
    (iii) Select a calibration gas (a span gas may be used 
forcalibrating the CO2 analyzer) with a concentration 
betweenthe two lowest non-zero gas divider increments. This gas must 
be``named'' to an accuracy of one percent of 
NISTgas standards or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated 
inparagraphs (c)(2) (i) and (ii) of this section, check theconcentration 
of the gas selected in paragraph (c)(2)(iii) of thissection. The 
concentration derived from the curve must be within2.3 percent (2.8 percent for 
CO2 spangas) of the gas's original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of thissection 
are met, use the gas divider with the gas selected inparagraph 
(c)(2)(iii) of this section and determine the remainder ofthe 
calibration points. Fit a calibration curve perSec. Sec. 90.316, 
90.317, 90.318, and 90.320 of thischapter for the entire analyzer range.
    (d) Emission measurement accuracy--continuoussampling. Analyzers 
used for continuous analysis must be operatedsuch that the measured 
concentration falls between 15 and 100 percentof full-scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or morethan 
100 percent of full scale if automatic range change circuitry isused and 
the limits for range changes are between 15 and 100 percentof full-scale 
chart deflection;
    (2) The analyzer's response may be less than 15 percent of fullscale 
if:

[[Page 212]]

    (i) The alternative in paragraph (c)(2) of this section isused to 
ensure that the accuracy of the calibration curve ismaintained below 15 
percent; or
    (ii) The full-scale value of the range is 155 ppm (C) or less; or
    (iii) The emissions from the engine are erratic and the 
integratedchart deflection value for the cycle is greater than 15 
percent offull scale; or
    (iv) The contribution of all data read below the 15 percent levelis 
less than 10 percent by mass of the final test results.



Sec. 90.315  Analyzer initial calibration.

    (a) Warming-up time. The warming-up time should be accordingto the 
recommendations of the manufacturer. If not specified, aminimum of two 
hours should be allowed for warming up the analyzers.
    (b) NDIR, FID, and HFID analyzer. Tune and maintain the NDIRanalyzer 
per the instrument manufacturer recommendations orspecifications or 
using good engineering practice. The combustionflame of the FID or HFID 
analyzer must be optimized in order to meetthe specifications in Sec. 
90.316(b).
    (c) Zero setting and calibration. Using purified syntheticair (or 
nitrogen), set the CO, CO2, NOX. andHC analyzers 
at zero. Connect the appropriate calibrating gases to theanalyzers and 
record the values. Use the same gas flow rates andpressure as when 
sampling exhaust.
    (d) Rechecking of zero setting. Recheck the zero settingand, if 
necessary, repeat the procedure described in paragraph (c) ofthis 
section.



Sec. 90.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as describedin 
this section. Operate the HFID to a set point 5.5 
[deg]Cbetween 185 and 197 [deg]C.
    (b) Initial and periodic optimization of detector response.Prior to 
initial use and at least annually thereafter, adjust the FIDand HFID 
hydrocarbon analyzer for optimum hydrocarbon response asspecified in 
this paragraph. Alternative methods yielding equivalentresults may be 
used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrumentstart-up 
and basic operating adjustment using the appropriate fuel(see Sec. 
90.312) and purified synthetic air or zero-gradenitrogen.
    (2) Use of one of the following procedures is required for FID 
orHFID optimization:
    (i) The procedure outlined in Society of Automotive Engineers(SAE) 
paper No. 770141, ``Optimization of a Flame IonizationDetector for 
Determination of Hydrocarbon in Diluted AutomotiveExhausts;'' author, 
Glenn D. Reschke. This procedure has beenincorporated by reference. See 
Sec. 90.7.
    (ii) The HFID optimization procedures outlined in 40 CFR part1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance 
bythe Administrator.
    (3) After the optimum flow rates have been determined, record 
themfor future reference.
    (c) Initial and periodic calibration. Prior to initial useand 
monthly thereafter, or within one month prior to the certificationtest, 
the FID or HFID hydrocarbon analyzer must be calibrated on allnormally 
used instrument ranges using the steps in this paragraph. Usethe same 
flow rate and pressures as when analyzing samples. Introducecalibration 
gases directly at the analyzer. An optional method fordilute sampling 
described in 40 CFR part 1065, subpart F, may be used.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with purified synthetic air 
orzero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration 
gaseshaving nominal concentrations between 10 and 90 percent of that 
range.A minimum of six evenly spaced points covering at least 80 percent 
ofthe 10 to 90 range (64 percent) is required (see following table).

------------------------------------------------------------------------
      Example calibration points (%)         Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.

[[Page 213]]

 
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entirerange covered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


For each range calibrated, if the deviation from a least-squares best-
fit straight line is two percent or less of the value ateach data point, 
calculate concentration values by use of a singlecalibration factor for 
that range. If the deviation exceeds twopercent at any point, use the 
best-fit non-linear equation whichrepresents the data to within two 
percent of each test point todetermine concentration.
    (d) Oxygen interference optimization. Prior to initial useand 
monthly thereafter, perform the oxygen interference optimizationas 
described in this paragraph. Choose a range where the oxygeninterference 
check gases will fall in the upper 50 percent. Conductthe test, as 
outlined in this paragraph, with the oven temperature setas required by 
the instrument manufacturer. Oxygen interference checkgas specifications 
are found in Sec. 90.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21 percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5 percentof 
full scale repeat paragraphs (d)(1) and (d)(2) of this section tocorrect 
the problem.
    (4) Introduce the five percent and 10 percent oxygen 
interferencecheck gases.
    (5) Recheck the zero response. If it has changed by more thanone percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated 
aspercent O2 I) for each mixture in paragraph (d)(4) of 
thissection according to the following equation.
[GRAPHIC] [TIFF OMITTED] TR03JY95.010

Where:

A = hydrocarbon concentration (ppmC) of the span gas used inparagraph 
(d)(2) of this section.
B = hydrocarbon concentration (ppmC) of the oxygen interferencecheck 
gases used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as 
percentO2 I) must be less than three 
percent for allrequired oxygen interference check gases prior to 
testing.
    (8) If the oxygen interference is greater than the 
specifications,incrementally adjust the air flow above and below the 
manufacturer'sspecifications, repeating paragraphs (d)(1) through (d)(7) 
of thissection for each flow.
    (9) If the oxygen interference is greater than the 
specificationafter adjusting the air flow, vary the fuel flow and 
thereafter thesample flow, repeating paragraphs (d)(1) through (d)(7) of 
thissection for each new setting.
    (10) If the oxygen interference is still greater than 
thespecifications, repair or replace the analyzer, FID fuel, or 
burnerair prior to testing. Repeat this section with the repaired 
orreplaced equipment or gases.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40448, July13, 2005]

[[Page 214]]



Sec. 90.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer as described inthis 
section.
    (b) Initial and periodic interference. Prior to its initialuse and 
annually thereafter, check the NDIR carbon monoxide analyzerfor response 
to water vapor and CO2.
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance on the 
mostsensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Bubble a mixture of three percent CO2 inN2 
through water at room temperature and record analyzerresponse.
    (4) An analyzer response of more than one percent of full scalefor 
ranges above 300 ppm full scale or more than three ppm on rangesbelow 
300 ppm full scale requires corrective action. (Use ofconditioning 
columns is one form of corrective action which may betaken.)
    (c) Initial and periodic calibration. Prior to its initialuse and 
monthly thereafter, or within one month prior to thecertification test, 
calibrate the NDIR carbon monoxide analyzer.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrationsbetween 10 
and 90 percent of that range. A minimum of six evenlyspaced points 
covering at least 80 percent of the 10 to 90 range (64percent) is 
required (see following table).

------------------------------------------------------------------------
      Example calibration points (%)         Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is two percent or less of the value at each data point, 
calculateconcentration values by use of a single calibration factor for 
thatrange. If the deviation exceeds two percent at any point, use 
thebest-fit non-linear equation which represents the data to within 
twopercent of each test point to determine concentration.



Sec. 90.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer 
asdescribed in this section.
    (b) Initial and Periodic Interference: Prior to its initialuse and 
monthly thereafter, or within one month prior to thecertification test, 
check the chemiluminescent oxides of nitrogenanalyzer for NO2 
to NO converter efficiency. Figure 1 inAppendix B of this subpart is a 
reference for paragraphs (b)(1)through (11) of this section:
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified syntheticair 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to thesample 
inlet of the oxides of nitrogen analyzer which has been set tothe most 
common operating range.
    (4) Introduce into the NOX generator analyzer-systeman 
NO-in-nitrogen (N2) mixture with an NO concentrationequal to 
approximately 80 percent of the most common operating range.The 
NO2 content of the gas mixture must be less than fivepercent 
of the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, recordthe 
concentration of NO indicated by the analyzer.
    (6) Turn on the NOX generator O2 (or 
air)supply and adjust the O2 (or air) flow rate so that the 
NOindicated by the analyzer is about 10 percent less than indicated 
inparagraph (b)(5) of this section. Record the concentration of NO 
inthis NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation modeand 
adjust the generation rate so that the NO measured on

[[Page 215]]

theanalyzer is 20 percent of that measured in paragraph (b)(5) of 
thissection. There must be at least 10 percent unreacted NO at this 
point.Record the concentration of residual NO as value ``d.''
    (8) Switch the oxides of nitrogen analyzer to the NOXmode 
and measure total NOX. Record this value as``a.''
    (9) Switch off the NOX generator but maintain gas 
flowthrough the system. The oxides of nitrogen analyzer will indicate 
theNOX in the NO+O2 mixture. Record this value 
as``b''.
    (10) Turn off the NOX generator O2 (orair) 
supply. The analyzer will now indicate the NOX in theoriginal 
NO-in-N2 mixture. This value should be no morethan five 
percent above the value indicated in paragraph (b)(4) ofthis section.
    (11) Calculate the efficiency of the NOX converter 
bysubstituting the concentrations obtained into the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.049

Where:

a = concentration obtained in paragraph (b)(8),
b = concentration obtained in paragraph (b)(9),
c = concentration obtained in paragraph (b)(6),
d = concentration obtained in paragraph (b)(7).

    If converter efficiency is less than 90 percent, corrective 
actionwill be required.
    (c) Initial and periodic calibration. Prior to its initialuse and 
monthly thereafter, or within one month prior to thecertification test, 
calibrate the chemiluminescent oxides of nitrogenanalyzer on all 
normally used instrument ranges. Use the same flowrate as when analyzing 
samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified syntheticair 
or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases having nominal concentrations between10 
and 90 percent of that range. A minimum of six evenly spaced 
pointscovering at least 80 percent of the 10 to 90 range (64 percent) 
isrequired (see following table).

------------------------------------------------------------------------
      Example calibration points (%)         Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is two percent or less of the value at each data point, 
calculateconcentration values by use of a single calibration factor for 
thatrange. If the deviation exceeds two percent at any point, use 
thebest-fit non-linear equation which represents the data to within 
twopercent of each test point to determine concentration.
    (d) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065, subpart 
D,may be used in lieu of the procedures specified in this section.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July13, 2005]



Sec. 90.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion 
ofNO2 to NO is tested as given in paragraphs (a)(1) 
through(a)(8) of this section.
    (1) Using the test setup as shown in Figure 1 in Appendix B ofthis 
subpart (see also Sec. 90.318 of this chapter) and theprocedure 
described in paragraphs (a)(2) through (a)(8) of thissection, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD or CLD in the most common operating 
rangefollowing the manufacturer's specifications using zero and span 
gas(the NO content of which must amount to about 80 percent of 
theoperating range and the NO2 concentration of the 
gasmixture less than five percent of the NO concentration). 
TheNOX analyzer must be in the NO mode so that the span 
gasdoes not pass through the converter. Record the 
indicatedconcentration.

[[Page 216]]

    (3) Calculate the efficiency of the NOX converteras 
described in Sec. 90.318(b).
    (4) Via a T-fitting, add oxygen continuously to the gas flow 
untilthe concentration indicated is about 20 percent less than 
theindicated calibration concentration given in paragraph (a)(2) of 
thissection. Record the indicated concentration ``c.'' Theozonator is 
kept deactivated throughout the process.
    (5) Activate the ozonator to generate enough ozone to bring the 
NOconcentration down to about 20 percent (minimum 10 percent) of 
thecalibration concentration given in paragraph (a)(2) of this 
section.Record the indicated concentration ``d.''

    Note: If, with the analyzer in the most common range, 
theNOX converter can not give a reduction from 80 percent 
to20 percent, then use the highest range which will give the reduction.

    (6) Switch the NO analyzer to the NOX mode which 
meansthat the gas mixture (consisting of NO, 
NO2,O2 and N2) now passes through the 
converter.Record the indicated concentration ``a.''
    (7) Deactivate the ozonator. The mixture of gases described 
inparagraph (a)(6) of this section passes through the converter into 
thedetector. Record the indicated concentration ``b.''
    (8) Switched to NO mode with the ozonator deactivated, the flow 
ofoxygen or purified synthetic air is also shut off. The 
NOXreading of the analyzer may not deviate by more than 
fivepercent of the theoretical value of the figure 
given in paragraph (a)(2) of this section.
    (b) The efficiency of the converter must be tested prior to 
eachcalibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90percent.



Sec. 90.320  Carbon dioxide analyzer calibration.

    (a) Prior to its initial use and monthly thereafter, or within 
onemonth prior to the certification test, calibrate the NDIR 
carbondioxide analyzer as follows:
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with 
carbondioxide-in-N2 calibration or span gases having 
nominalconcentrations between 10 and 90 percent of that range. A minimum 
ofsix evenly spaced points covering at least 80 percent of the 10 to 
90range (64 percent) is required (see following table).

------------------------------------------------------------------------
      Example calibration points (%)         Acceptable for Calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is two percent or less of the value at each data point, 
calculateconcentration values by use of a single calibration factor for 
thatrange. If the deviation exceeds two percent at any point, use 
thebest-fit non-linear equation which represents the data to within 
twopercent of each test point to determine concentration.
    (b) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065, subparts 
Cand D, may be used in lieu of the procedures in this section.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July13, 2005]



Sec. 90.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow theinstrument 
manufacturer's instructions for initial start-up and basicoperating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for eachrange 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 
0.5percent of full scale, repeat the steps given in

[[Page 217]]

paragraphs (b)(1) and (b)(2) of this section.
    (4) Record the response of calibration gases having 
nominalconcentrations between 10 and 90 percent of full-scale 
concentration.A minimum of six evenly spaced points covering at least 80 
percent ofthe 10 to 90 range (64 percent) is required (see following 
table).

------------------------------------------------------------------------
      Example calibration points (%)         Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------

    (5) Generate a calibration curve. The calibration curve must be 
offourth order or less, have five or fewer coefficients, and be of 
theform of the following equation (1) or (2). Include zero as a 
datapoint. Compensation for known impurities in the zero gas can be 
madeto the zero-data point. The calibration curve must fit the data 
pointswithin two percent of point or one percent of full scale, 
whichever isless.
[GRAPHIC] [TIFF OMITTED] TR03JY95.011

where:

y = concentration
x = chart deflection

    (6) Option. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of 
thissection exists; or,
    (ii) The responses generated in paragraph (b)(4) of this sectionare 
within one percent of full scale or two percent of point,whichever is 
less, of the responses predicted by the calibration curvefor the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range usedmust 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within twopercent 
of being linear, a linear calibration may be used. Todetermine if this 
criterion is met:
    (1) Perform a linear least-square regression on the datagenerated. 
Use an equation of the form y=mx, where x is the actualchart deflection 
and y is the concentration.
    (2) Use the equation z=y/m to find the linear chart 
deflection(designated as z) for each calibration gas concentration 
(designatedas y).
    (3) Determine the linearity (designated as percent L) for 
eachcalibration gas by:
[GRAPHIC] [TIFF OMITTED] TR03JY95.012

    (4) The linearity criterion is met if the %L is less thantwo percent for each data point generated. For each 
emissiontest, use a calibration curve of the form Y=mx. The slope 
(designatedas m) is defined for each range by the spanning process.



Sec. 90.322  Calibration of other equipment.

    Calibrate other test equipment used for testing as often asrequired 
by the test equipment manufacturer or as necessary accordingto good 
engineering practice.



Sec. 90.323  Analyzer bench checks.

    (a) Prior to initial use and after major repairs, verify that 
eachanalyzer complies with the specifications given in Table 2 in 
AppendixA of this subpart.
    (b) If a stainless steel NO2 to NO converter is 
used,condition all new or replacement converters. The conditioning 
consistsof either purging the converter with air for a minimum of four 
hoursor until the converter efficiency is greater than 90 percent. The

[[Page 218]]

converter must be at operational temperature while purging. Donot use 
this procedure prior to checking converter efficiency on in-use 
converters.



Sec. 90.324  Analyzer leakage check.

    (a) Vacuum side leak check. (1) Check any location withinthe 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 
0.5percent of the in-use flow rate for the portion of the system 
beingchecked. The analyzer flows and bypass flows may be used to 
estimatethe in-use flow rates.
    (3) The sample probe and the connection between the sample probeand 
valve V2, see Figure 1 in Appendix B of subpart E of this part,may be 
excluded from the leak check.
    (b) Pressure-side leak check. Substantial leaks of thesample on the 
pressure side of the system may impact sample integrityif the leaks are 
of sufficient magnitude. As a safety precaution, goodengineering 
practice would require that manufacturers perform periodicpressure-side 
leak checks of the sampling system. The recommendedmaximum leakage rate 
on the pressure side is five percent of the in-use flow rate.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July13, 2005]



Sec. 90.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being 
analyzedcan interfere with the reading in several ways. Positive 
interferenceoccurs in NDIR and PMD instruments when the interfering gas 
gives thesame effect as the gas being measured, but to a lesser 
degree.Negative interference occurs in NDIR instruments by the 
interferinggas broadening the absorption band of the measured gas, and 
in CLDinstruments by the interfering gas quenching the radiation. 
Theinterference checks described in this section are to be made 
initiallyand after any major repairs that could affect analyzer 
performance.
    (b) CO analyzer water and CO2 interferencechecks. Bubble 
through water at room temperature a CO2span gas having a 
concentration of between 80 percent and 100 percentinclusive of full 
scale of the maximum operating range used duringtesting and record the 
analyzer response. For dry measurements, thismixture may be introduced 
into the sample system prior to the watertrap. The analyzer response 
must not be more than one percent of fullscale for ranges equal to or 
above 300 ppm or more than three ppm forranges below 300 ppm.
    (c) NOX analyzer quench check. The twogases of concern for CLD (and 
HCLD) analyzers are CO2 andwater vapor. Quench responses to 
these two gases are proportional totheir concentrations and, therefore, 
require test techniques todetermine quench at the highest expected 
concentrations experiencedduring testing.
    (1) NOX analyzer CO2 quenchcheck. (i) Pass a 
CO2 span gas having a concentrationof 80 percent to 100 
percent of full scale of the maximum operatingrange used during testing 
through the CO2 NDIR analyzerand record the value ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percentwith 
NO span gas and pass through the CO2 NDIR and CLD (orHCLD). 
Record the CO2 and NO values as ``b''and ``c'' respectively.
    (iii) Shut off the CO2 and pass only the NO span 
gasthrough the CLD (or HCLD). Record the NO value as ``d.''
    (iv) Calculate the percent CO2 quench as follows, notto 
exceed three percent:
[GRAPHIC] [TIFF OMITTED] TR03JY95.013

Where:

a = Undiluted CO2 concentration (percent)
b = Diluted CO2 concentration (percent)
c = Diluted NO concentration (ppm)
d = Undiluted NO concentration (ppm)


[[Page 219]]


    (2) NOX analyzer water quench check.(i) This check 
applies to wet measurements only. An NO span gas havinga concentration 
of 80 percent to 100 percent of full scale of a normaloperating range is 
passed through the CLD (or HCLD) and the responserecorded as ``D''. The 
NO span gas is then bubbled throughwater at room temperature and passed 
through the CLD (or HCLD) and theanalyzer's response recorded as AR. 
Determine and record theanalyzer's absolute operating pressure and the 
bubbler watertemperature. (It is important that the NO span gas contains 
minimalNO2 concentration for this check. No allowance 
forabsorption of NO2 in water has been made in the 
followingquench calculations.)
    (ii) Calculations for water quench must consider dilution of theNO 
span gas with water vapor and scaling of the water vaporconcentration of 
the mixture to that expected during testing.Determine the mixture's 
saturated vapor pressure (designated as Pwb)that corresponds to the 
bubbler water temperature. Calculate the waterconcentration (``Z1'', 
percent) in the mixture by thefollowing equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.014

where GP is the analyzer's standard operating pressure (pascals).

    (iii) Calculate the expected dilute NO span gas and water 
vapormixture concentration (designated as D1) by the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.015



Sec. 90.326  Pre- and post-test analyzer calibration.

    Calibrate only the range of each analyzer used during the 
engineexhaust emission test prior to and after each test in accordance 
withthe following:
    (a) Make the calibration by using a zero gas and a span gas. Thespan 
gas value must be between 75 and 100 percent of the highest rangeused.
    (b) Use the same analyzer(s) flow rate and pressure as that 
usedduring exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibrationis 
made.
    (d) If necessary clean and/or replace filter elements 
beforecalibration is made.
    (e) Calibrate analyzer(s) as follows:
    (1) Zero the analyzer using the appropriate zero gas. Adjustanalyzer 
zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the 
rangebeing calibrated. Adjust the analyzer to the calibration set point 
ifnecessary.
    (3) Re-check zero and span set points.
    (4) If the response of the zero gas or span gas differs more thanone 
percent of full scale at the highest range used, then repeatparagraphs 
(e)(1) through (3) of this section.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July13, 2005]



Sec. 90.327  Sampling system requirements.

    (a) Sample component surface temperature. For samplingsystems which 
use heated components, use engineering judgment tolocate the coolest 
portion of each component (pump, sample linesection, filters, and so 
forth) in the heated portion of the samplingsystem that has a separate 
source of power or heating element. Monitorthe temperature at that 
location. If several components are within anoven, then only the surface 
temperature of the component with thelargest thermal mass and the oven 
temperature need be measured.
    (b) If water is removed by condensation, monitor the sample 
gastemperature or sample dew point either within the water trap 
ordownstream. It may not exceed 7 [deg]C.



Sec. 90.328  Measurement equipment accuracy/calibration frequency table.

    (a) The accuracy of measurements must be such that the 
maximumtolerances shown in Table 2 in Appendix A of this subpart are 
notexceeded.
    (b) All equipment and analyzers must be calibrated according tothe 
frequencies shown in Table 2 in Appendix A of this subpart.
    (c) Prior to initial use and after major repairs, bench check 
eachanalyzer (see Sec. 90.323).

[[Page 220]]

    (d) Calibrate equipment as specified in Sec. 90.306and Sec. Sec. 
90.315 through 90.322.
    (e) At least monthly, or after any maintenance which could 
altercalibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (seeSec. 90.324(a)).
    (2) Verify that the automatic data collection system (if used)meets 
the requirements found in Table 2 in Appendix A of this subpart.
    (3) Check the fuel flow measurement instrument to insure that 
thespecifications in Table 2 in Appendix A of this subpart are met.
    (f) Verify that all NDIR analyzers meet the water rejection ratioand 
the CO2 rejection ratio as specified inSec. 90.325.
    (g) Verify that the dynamometer test stand and power 
outputinstrumentation meet the specifications in Table 2 in Appendix A 
ofthis subpart.



Sec. 90.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for thermallystressing the 
test catalyst must be capable of maintaining atemperature of 500 5 [deg]C and 1000 10 [deg]C.
    (b) Evaluation gas composition. (1) A synthetic exhaust gasmixture 
is used for evaluating the effect of thermal stress oncatalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the 
followingcomposition:

------------------------------------------------------------------------
                                                       Volume   Partsper
                     Constituent                       percent   million
------------------------------------------------------------------------
Carbon Monoxide.....................................       1    ........
Oxygen..............................................       1.3  ........
Carbon Dioxide......................................       3.8  ........
Water Vapor.........................................      10    ........
Sulfer dioxide......................................  ........        20
Oxides of nitrogen..................................  ........       280
Hydrogen............................................  ........      3500
Hydrocarbon*........................................  ........      4000
Nitrogen = Balance
------------------------------------------------------------------------
* Propylene/propane ratio = 2/1.

    (c) Phase 2 engines. The catalyst thermal stress test is notrequired 
for engine families certified to the Phase 2 standards.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar.30, 1999]



             Sec. Appendix A to Subpart D of Part90--Tables

                   Table 1--Symbols Used in Subpart D
------------------------------------------------------------------------
     Symbol                         Term                        Unit
------------------------------------------------------------------------
CO                Carbon monoxide.........................
CO2               Carbon dioxide..........................
NO                Nitric oxide............................
NO2               Nitrogen dioxide........................
NOX               Oxides of nitrogen......................
O2                Oxygen..................................
conc              Concentration (ppm by volume)...........  ppm
f                 Engine specific parameter considering
                   atmospheric conditions.
FFCB              Fuel specific factor for the carbon
                   balancecalculation.
FFD               Fuel specific factor for exhaust flow
                   calculationon dry basis.
FFH               Fuel specific factor representing the
                   hydrogen tocarbon ratio.
FFW               Fuel specific factor for exhaust flow
                   calculationon wet basis.
GAIRW             Intake air mass flow rate on wet basis..  kg/h
GAIRD             Intake air mass flow rate on dry basis..  kg/h
GEXHW             Exhaust gas mass flow rate on wet basis.  kg/h
GFuel             Fuel mass flow rate.....................  kg/h
H                 Absolute humidity (water content related  gr/kg
                   to dry air).
i                 Subscript denoting an individual mode...
KH                Humidity correction factor..............
L                 Percent torque related to maximum torque  percent
                   for the testmode.
mass              Pollutant mass flow.....................  g/h
nd, i             Engine speed (average at the i'th         1/min
                   modeduring the cycle).
Ps                Dry atmospheric pressure................  kPa
Pd                Test ambient saturation vapor pressure    kPa
                   at ambienttemperature.
P                 Gross power output uncorrected..........  kW
PAUX              Declared total power absorbed by          kW
                   auxiliariesfitted for the test.
PM                Maximum power measured at the test speed  kW
                   undertest conditions.
Pi                Pi = PM, i +PAUX, i.....................
PB                Total barometric pressure (average of     kPa
                   the pre-testand post-test values).
Ra                Relative humidity of the ambient air....  percent
T                 Absolute temperature at air inlet.......  C

[[Page 221]]

 
Tbe               Air temperature after the charge air      C
                   cooler(if applicable) (average).
Tclout            Coolant temperature outlet (average)....  C
TDd               Absolute dew point temperature..........  C
Td, i             Torque (average at the i'th mode          N-m
                   duringthe cycle).
TSC               Temperature of the intercooled air......  C
Tref.             Reference temperature...................  C
VEXHD             Exhaust gas volume flow rate on drybasis  m\3\/h
VAIRW             Intake air volume flow rate on wetbasis.  m\3\/h
PB                Total barometric pressure...............  kPa
VEXHW             Exhaust gas volume flow rate on wetbasis  m\3\/h
WF                Weighing factor.........................
WFE               Effective weighing factor...............
------------------------------------------------------------------------


                             Table 2--MeasurementCalibration Accuracy and Frequency
----------------------------------------------------------------------------------------------------------------
                                            Permissibledeviation from reading *
    No.                Item           ----------------------------------------------     Calibrationfrequency
                                                Non-idle                 Idle
----------------------------------------------------------------------------------------------------------------
1.........  Engine speed.............  2 %  Same.............  Monthly or within one
                                                                                      monthprior to the
                                                                                      certification test.
2.........  Torque...................  2 %  .................  Monthly or within one month
                                                                                      prior tothe certification
                                                                                      test.
3.........  Fuel consumption.........  2 %  5%.         prior to the certification
                                                                                      test.
4.........  Air consumption..........  2 %  5%.
5.........  Coolant temperature......  2    Same.............  As required.
                                        [deg]C.
6.........  Lubricant temperature....  2    Same.............  As required.
                                        [deg]C.
7.........  Exhaust back pressure....  5 %  Same.............  As required.
8.........  Inlet depression.........  5 %  Same.............  As required.
9.........  Exhaust gas temperature..  15   Same.............  Asrequired.
                                        [deg]C.
10........  Air inlet temperature      2[deg]C.
11........  Atmospheric pressure.....  0.5  Same.............  As required.
                                        %.
12........  Humidity (combustion air)  3.0  Same.............  Asrequired.
             (relative).                %.
13........  Fuel temperature.........  2    Same.............  As required.
                                        [deg]C.
14........  Temperature with regard    2[deg]C.
15........  Dilution air humidity....  3 %  Same.............  Asrequired.
                                        absolute.
16........  HC analyzer..............  2    Same.............  Monthly or within one
                                        %**.                                          monthprior to the
                                                                                      certification test.
17........  CO analyzer..............  2 %  Same.............  Monthly or withinone month
                                        **.                                           prior to the certification
                                                                                      test.
18........  NOX analyzer.............  2%   Same.............  Monthly or within one month
                                        **.                                           prior to thecertification
                                                                                      test.
19........  NOX converter check......  90 %.....................  Same.............  Monthly or withinone month
                                                                                      prior to the certification
                                                                                      test.
20........  CO2 analyzer.............  2%   Same.............  Monthly or within one month
                                        **.                                           prior to thecertification
                                                                                      test.
----------------------------------------------------------------------------------------------------------------
* All accuracy requirements pertain to the final recordedvalue which is inclusive of the data acquisition
  system.
** If reading is under 100 ppm then the accuracy shall be2 ppm.


                                        Table 3--Test FuelSpecifications
----------------------------------------------------------------------------------------------------------------
                Item                           Property                  Tolerances         Procedure (ASTM) \1\
----------------------------------------------------------------------------------------------------------------
Sulfur, ppm max.....................  339......................  .........................  D 2622-92
Benzene, max. %.....................  1.5......................  .........................  D 3606-92
RVP, psi............................  8.7......................  0.2  D 5191-93a
Octane, R+M/2.......................  87.3.....................  0.5  D 2699-92
                                                                                            D2700-92
IBP, [deg]C.........................  32.8.....................  11.0.
10 % point, [deg]C..................  53.3.....................  5.5  D 86-93
50 % point, [deg]C..................  103.3....................  5.5  D 86-93
90 % point, [deg]C..................  165.6....................  5.5  D 86-93
End Point, max. [deg]C..............  212.8....................  .........................  D 86-93
Phosphorus, g/liter, max............  0.02.....................  .........................  D 3231-89
Lead, g/liter, max..................  0.02.....................  .........................  ....................
Manganese, g/liter, max.............  0.004....................  .........................  ....................
Aromatics, %........................  32.0.....................  4.0  D 1319-89

[[Page 222]]

 
Olefins, %..........................  9.2......................  4.0  D 1319-89
Saturates, %........................  Remainder................  .........................  D 1319-89
----------------------------------------------------------------------------------------------------------------
\1\ All ASTM procedures in this table have been incorporatedby reference. See Sec.  90.7.


[[Page 223]]



             Sec. Appendix B to Subpart D of Part90--Figures

[GRAPHIC] [TIFF OMITTED] TC01MR92.085


[[Page 224]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.086


[[Page 225]]





                Subpart E_Gaseous Exhaust Test Procedures



Sec. 90.401  Applicability.

    (a) This subpart describes the procedures to follow in order 
toperform exhaust emission tests on new nonroad spark-ignition 
enginesand vehicles subject to the provisions of subpart A of part 
90.Provisions specific to raw gas sampling are in Sec. 90.414through 
Sec. 90.419, provisions specific to constant volumesampling are in 
Sec. 90.420 through Sec. 90.426.All other sections in this subpart 
apply to both raw gas sampling andconstant volume sampling except where 
indicated otherwise.
    (b) Requirements for emission test equipment and calibrating 
thisequipment are found in subpart D of this part.
    (c) Certain text in this subpart is identified as pertaining toPhase 
1 or Phase 2 engines. Such text pertains only to engines of thespecified 
Phase. If no indication of Phase is given, the text pertainsto all 
engines, regardless of Phase.
    (d) For Phase 2 Class I, Phase 2 Class I-B, and Phase 2Class II 
natural gas fueled engines, use the equipment specified in 40CFR part 
1065, subparts D and E, to measure nonmethane hydrocarbon(NMHC) exhaust 
emissions from Phase 2 Class I, Phase 2 ClassI-B, and Phase 2 Class II 
natural gas fueled engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999; 65 
FR 24312, Apr. 25, 2000; 70 FR 40449, July 13, 2005]



Sec. 90.402  Definitions.

    The definitions in Sec. 90.3, Sec. 90.101, andSec. 90.302 apply 
to this subpart.



Sec. 90.403  Symbols, acronyms, and abbreviations.

    (a) The acronyms and abbreviations in Sec. 90.5 apply tothis 
subpart.
    (b) The symbols in Table 1 in Appendix A to Subpart D apply tothis 
subpart.



Sec. 90.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine 
operatingconditions to be conducted on an engine dynamometer or 
equivalent loadand speed measurement device. The exhaust gases generated 
duringengine operation are sampled either raw or dilute and 
specificcomponents are analyzed through the analytical system.
    (b) The test is designed to determine the brake-specific emissionsof 
hydrocarbons, carbon monoxide, carbon dioxide, and oxides ofnitrogen and 
fuel consumption. For Phase 2 Class I-B, Class I, andClass II natural 
gas fueled engines the test is also designed todetermine the brake-
specific emissions of non-methane hydrocarbons.The test consists of 
three different test cycles which are applicationspecific for engines 
which span the typical operating range of nonroadspark-ignition engines. 
Two cycles exist for Class I-B, I and IIengines and one is for Class I-
A, III, IV, and V engines (seeSec. 90.103(a) and Sec. 90.116(b) for 
thedefinitions of Class I-A, I-B, and I--V engines). The testcycles for 
Class I-B, I, and II engines consist of one idle mode andfive power 
modes at one speed (rated or intermediate). The test cyclefor Class I-A, 
III, IV, and V engines consists of one idle mode atidle speed and one 
power mode at rated speed. These procedures requirethe determination of 
the concentration of each pollutant, fuel flow,and the power output 
during each mode. The measured values areweighted and used to calculate 
the grams of each pollutant emitted perbrake kilowatt hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the 
completeengine must be tested, with all emission control devices 
installed andfunctioning.
    (2) On air cooled engines, the cooling fan must be installed. 
Forengines whose cooling fan serves a dual purpose, such as an airpump/
blower, an external fan may be used to provide the engine withcooling 
air and the original cooling fan may be removed.
    (d) All emission control systems installed on or incorporated inthe 
application must be functioning during all procedures in thissubpart. In 
case of component malfunction or failure, no maintenanceis allowed 
without prior approval from the Administrator, inaccordance with Sec. 
90.119.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999; 65 
FR 24312, Apr. 25, 2000]

[[Page 226]]



Sec. 90.405  Recorded information.

    (a) Record the information described in this section for eachtest, 
where applicable.
    (b) Test data; general. (1) Engine identification number.
    (2) Engine emission control system.
    (3) Test operator(s).
    (4) Number of hours of operation accumulated on the engine priorto 
beginning the warm-up portion of the test (to the nearest tenthhour).
    (5) Fuel identification.
    (6) For 2-stroke engines, fuel/oil mixture ratio.
    (7) Date of most recent analyzer bench calibration.
    (8) All pertinent instrument information such as tuning, gain,serial 
numbers, detector number, and calibration curve(s). As long asthis 
information is traceable, it may be summarized by system numberor 
analyzer identification numbers.
    (c) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Barometric pressure; as an option, barometric pressure can 
bemeasured as a modal measurement instead of or in addition to a pre-and 
post-test measurement.
    (4) Recorder chart or equivalent. Identify for each test segmentzero 
traces for each range used, and span traces for each range used.
    (d) Test data; modal. (1) Recorder chart or equivalent.Identify for 
each test mode the emission concentration traces and theassociated 
analyzer range(s).
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Intake air flow if applicable.
    (5) Test cell temperature and humidity for each mode.
    (6) For raw gas testing; fuel flow for each mode. Fuel 
flowmeasurement is not required for dilute testing, but is allowed. If 
thefuel flow measurement is a volume measurement system, record the 
fueltemperature in the measurement system for fuel density corrections 
tothe mass flow rate. If the fuel temperature is within 3 [deg]C of 
thecalibration temperature, no density correction is required.
    (7) Engine intake temperature and humidity, if applicable.
    (8) Exhaust mixing chamber surface temperature, if applicable.
    (9) Exhaust sample line temperature, if applicable.
    (e) Test data; post-test. (1) Recorder chart or equivalent.Identify 
the hang-up check.
    (2) Recorder chart or equivalent. Identify the zero traces foreach 
range used and the span traces for each range used.
    (3) Total number of hours of operation accumulated on the engine(to 
the nearest tenth hour).
    (4) Barometric pressure, post-test segment.

[60 FR 34598, July 13, 1995, as amended at 70 FR 40449, July13, 2005]



Sec. 90.406  Engine parameters to be measured and recorded.

    Measure or calculate, then record the engine parameters in Table 1in 
Appendix A of this subpart.



Sec. 90.407  Engine inlet and exhaust systems.

    (a) The engine manufacturer is liable for exhaust emissioncompliance 
over the full range of air inlet filter systems and exhaustmuffler 
systems.
    (b) The air inlet filter system and exhaust muffler 
systemcombination used on the test engine must be the systems expected 
toyield the highest emission levels.



Sec. 90.408  Pre-test procedures.

    (a) Engine service accumulation and stabilization procedure.Use the 
service accumulation procedure determined by the manufacturerfor exhaust 
emission stabilizing of an engine, consistent with goodengineering 
practice (see Sec. 90.118).
    (1) The manufacturer determines, for each engine family, thenumber 
of hours at which the engine exhaust emission control systemcombination 
is stabilized for emission testing. However, thisstabilization procedure 
may not exceed 12 hours. The manufacturer mustmaintain, and provide to 
the Administrator upon request, a record ofthe rationale used in making 
this determination. If the manufacturercan document that at some time 
prior to the full 12 hour serviceaccumulation

[[Page 227]]

period the engine emissions are decreasing for theremainder of the 12 
hours, the service accumulation may be completedat that time. The 
manufacturer may elect to accumulate 12 hours oneach test engine within 
an engine family without making thisdetermination.
    (2) During service accumulation, the fuel and lubricants specifiedin 
Sec. 90.308 must be used.
    (3) Engine maintenance during service accumulation is allowed onlyin 
accordance with Sec. 90.118.
    (b) Engine pre-test preparation. (1) Drain and charge thefuel 
tank(s) with the specified test fuel (seeSec. 90.308(b)) to 50 percent 
of the tank's nominalcapacity. If an external fuel tank is used, the 
engine fuel inletsystem pressure must be typical of what the engine will 
see in use.
    (2) An evaluation of the effects of test measurement systems 
onengine emissions shall be conducted using good engineering judgment 
toensure that such test systems do not significantly impact 
exhaustemissions from the engine. For example, this would require 
evaluationof all types of emission sampling systems, and of fuel- and 
air-flowmeasurement systems for raw sampling. This can be accomplished 
byoperating the engine at the highest engine torque value that will 
beencountered on the test cycle before and after such test systems 
areinstalled to ensure that the impact on measured torque is less than 
5percent. This may also be accomplished by measuring air-to-fuel 
ratiousing a zirconia universal exhaust gas oxygen (UEGO) sensor to 
ensurethat the impact on measured air-to-fuel ratio is less than 5 
percentat the highest engine torque value that will be encountered on 
thetest cycle before and after such test systems are installed. 
Theimpact of air- and fuel-flow measurement systems may be 
evaluatedbased on an engineering analysis of the impact of the change 
inpressure induced on air-intake pressure and fuel supply pressure 
bythese measurement systems. While this would typically be done 
beforetesting, it may also be done as a post-test verification.
    (c) Analyzer pre-test procedures. (1) If necessary, warm upand 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then leak check 
thesystem as required by Sec. 90.324(a). If necessary, allowthe heated 
sample line, filters, and pumps to reach operatingtemperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated 
FIDsample line temperature must be maintained between 110 [deg]C and 
230[deg]C; a heated NOX sample line temperature must 
bemaintained between 60 [deg]C and 230 [deg]C.
    (ii) Check that the system response time has been accounted forprior 
to sample collection data recording.
    (iii) A HC hang-up check is permitted (seeSec. 90.413(e)).
    (4) Check analyzer zero and span before and after each test at 
aminimum. Further, check analyzer zero and span any time a range 
changeis made or at the maximum demonstrated time span for stability 
foreach analyzer used.
    (d) Check system flow rates and pressures and reset, if necessary.

[60 FR 34598, July 3, 1995, as amended at 65 FR 24312, Apr.25, 2000; 70 
FR 40449, July 13, 2005]



Sec. 90.409  Engine dynamometer test run.

    (a) Engine and dynamometer start-up. (1) Only adjustments 
inaccordance with Sec. 90.119 may be made to the test engineprior to 
starting a test.
    (2) If necessary, warm up the dynamometer as recommended by 
thedynamometer manufacturer or use good engineering practice.
    (3) For Phase 1 engines, at the manufacturer's option, the enginecan 
be run with the throttle in a fixed position or by using theengine's 
governor (if the engine is manufactured with a governor). Ineither case, 
the engine speed and load must meet the requirementsspecified in 
paragraph (b)(12) of this section. For Phase 2 Class I,Phase 2 Class I-
B, and Phase 2 Class II engines equipped with anengine speed governor, 
the governor must be used to control enginespeed during all test cycle 
modes except for Mode 1 or Mode 6, and noexternal throttle control may

[[Page 228]]

be used that interferes with thefunction of the engine's governor; a 
controller may be used to adjustthe governor setting for the desired 
engine speed in Modes 2-5or Modes 7-10; and during Mode 1 or Mode 6 
fixed throttleoperation may be used to determine the 100 percent torque 
value.
    (b) Each test consists of the following steps.
    (1) Record the general test data as specified inSec. 90.405(b).
    (2) Precondition the engine in the following manner;
    (i) Operate the engine at a power greater than or equal to 50percent 
maximum power at the appropriate speed (rated or intermediate)for 20 
minutes;
    (ii) Option. If the engine has been operating on serviceaccumulation 
for a minimum of 40 minutes, the service accumulation maybe substituted 
for step (i).
    (3) Record all pre-test data specified inSec. 90.405(c).
    (4) Start the test cycle (see Sec. 90.410) within fiveminutes of 
the completion of the steps required by paragraph (b)(2) ofthis section.
    (5) Modes are to be performed in the numerical order specified 
forthe appropriate test cycle (see ``Mode Points'' Table 2 inAppendix A 
of this subpart).
    (6) For Class I, I-B, and II engines, during the maximum torquemode 
calculate the torque corresponding to 75, 50, 25, and 10 percentof the 
maximum observed torque (see Table 2 in Appendix A to thissubpart).
    (7) Once engine speed and load are set for a mode, run the enginefor 
a sufficient period of time to achieve thermal stability. At 
themanufacturer's option, determine and document the 
appropriatecriterion for thermal stability for each engine family. If 
themanufacture chooses not to make this determination, an 
acceptablealternative is to run the engine at each mode until the 
cylinder headtemperature remains within a 10 [deg]C bandwidth for three 
minutes.Cylinder head temperature may be measured at the base of the 
sparkplug. After stability is achieved, emission measurements 
areinitiated.
    (8) Record all modal data specified in Sec. 90.405(d)for a minimum 
time period of the last two minutes of each mode. Longeraveraging 
periods are acceptable, but the data averaged must be from acontinuous 
time period. The duration of time during which this data isrecorded is 
referred to as the ``sampling period.'' Thedata collected during the 
sampling period is used for modal emissioncalculations.
    (9) Continuously record the analyzer's response to the exhaust 
gasduring each mode.
    (10) Modes may be repeated.
    (11) If a delay of more than one hour occurs between the end ofone 
mode and the beginning of another mode, the test is void and mustbe 
restarted at paragraph (b)(1) of this section.
    (12) The engine speed and load must be maintained within 
therequirements of Sec. 90.410 during the sampling period ofeach mode. 
If this requirement is not met, the mode is void and mustbe restarted.
    (13) If at any time during a mode the test equipment malfunctionsor 
the specifications in Sec. 90.410 can not be met, thetest is void and 
must be aborted. Corrective action should be takenand the test 
restarted.
    (14) If at any time during an operating mode the engine 
stalls,restart the engine immediately and continue the test starting 
with thesteps required by paragraph (b)(6) of this section. If the 
engine willnot restart within five minutes the test is void. If 
maintenance isrequired on the engine, advance approval from the 
Administrator isrequired as specified in Sec. 90.119. After 
correctiveaction is taken, the engine may be rescheduled for testing. 
Report thereason for the malfunction (if determined) and the corrective 
actiontaken.
    (15) Fuel flow and air flow during the idle condition may 
bedetermined just prior to or immediately following the 
dynamometersequence, if longer times are required for accurate 
measurements. Ifthe dilute sampling method (Constant Volume Sampling) is 
used, neitherfuel flow nor air flow measurements are required.
    (c) Exhaust gas measurements. (1) Measure HC, CO,CO2, and 
NOX concentration in the exhaustsample.
    (2) Each analyzer range that may be used during a test mode musthave 
the

[[Page 229]]

zero and span responses recorded prior to the start ofthe test. Only the 
range(s) used to measure the emissions during thetest is required to 
have its zero and span recorded after thecompletion of the test. 
Depending on the stability of each individualanalyzer, more frequent 
zero checks or spans between modes may benecessary.
    (3) It is permitted to change filter elements between modes.
    (4) A leak check is permitted between modes.
    (5) A hang-up check is permitted between modes (seeSec. 90.413).
    (6) If, during the emission measurement portion of a mode, thevalue 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (seeFigure 1 
in Appendix B of this subpart), differs by more than0.5kPa from the pretest value, the test mode is void.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999; 65 
FR 24313, Apr. 25, 2000; 70 FR 40449, July 13, 2005]



Sec. 90.410  Engine test cycle.

    (a) Follow the appropriate 6-mode test cycle for Class I, I-B andII 
engines and 2-mode test cycle for Class I-A, III, IV, and V engineswhen 
testing spark-ignition engines (see Table 2 in Appendix A of 
thissubpart).
    (b) For Phase 1 engines and Phase 2 Class I-A, III, IV, and V, 
andPhase 2 Class I and II engines not equipped with an engine 
speedgovernor, during each non-idle mode, hold both the specified speed 
andload within five percent of point. During the 
idle mode, holdspeed within ten percent of the 
manufacturer's specified idleengine speed. For Phase 2 Class I, I-B, and 
II engines equipped withan engine speed governor, during Mode 1 or Mode 
6 hold both thespecified speed and load within five percent of point, duringModes 2-3, or Modes 7-8 
hold the specified load withfive percent of point, 
during Modes 4-5 or Modes9-10, hold the specified load within the larger 
range providedby 0.27 Nm (0.2 lb-ft), or ten (10) percentof 
point, and during the idle mode hold the specified speed withinten percent of the manufacturer's specified idle engine 
speed(see Table 1 in Appendix A of this subpart for a description of 
testModes). The use of alternative test procedures is allowed if 
approvedin advance by the Administrator.
    (c) If the operating conditions specified in paragraph (b) of 
thissection for Class I, I-B, and II engines using Mode Points 2, 3, 
4,and 5 cannot be maintained, the Administrator may authorize 
deviationsfrom the specified load conditions. Such deviations may not 
exceed 10percent of the maximum torque at the test speed. The 
minimumdeviations, above and below the specified load, necessary for 
stableoperation shall be determined by the manufacturer and approved by 
theAdministrator prior to the test run.
    (d) Do not include power generated during the idle mode, Mode 11,in 
the calculation of emission results.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999; 65 
FR 24313, Apr. 25, 2000]



Sec. 90.411  Post-test analyzer procedures.

    (a) Perform a HC hang-up check within 60 seconds of the completionof 
the last mode in the test. Use the following procedure:
    (1) Introduce a zero gas or room air into the sample probe orvalve 
V2 (see Figure 2 in Appendix B of Subpart D) to check the``hangup zero'' 
response. Simultaneously start a timemeasurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement 
inparagraph (a)(1) of this section, the difference between the zero 
gasresponse and the hang-up zero response may not be greater than 
5.0percent of full scale or 10 ppmC, whichever is greater.
    (b) Begin the analyzer span checks within six minutes after 
thecompletion of the last mode in the test. Record for each analyzer 
thezero and span response for each range used during the preceding 
testor test segment.
    (c) If during the test, the filter element(s) were replaced 
orcleaned, a vacuum check must be performed per Sec. 
90.324(a)immediately after the span checks. If the vacuum side leak 
check doesnot meet the requirements of Sec. 90.324(a), the test isvoid.
    (d) Read and record the post-test data specified inSec. 90.405(e).

[[Page 230]]

    (e) For a valid test, the analyzer drift between the before-segment 
and after-segment span checks for each analyzer must meet thefollowing 
requirements:
    (1) The span drift (defined as the change in the differencebetween 
the zero response and the span response) may not exceed twopercent of 
full-scale chart deflection for each range used.
    (2) The zero response drift may not exceed two percent of full-scale 
chart deflection for each range used above 155 ppm (or ppm C),or three 
percent of full-scale chart deflection for each range below155 ppm (or 
ppm C).



Sec. 90.412  Data logging.

    (a) A computer or any other automatic data collection (ADC)device(s) 
may be used as long as the system meets the requirements ofthis subpart.
    (b) Determine from the data collection records the analyzerresponses 
corresponding to the end of each mode.
    (c) Record data at a minimum of rate of one Hz (one time persecond).
    (d) Determine the final value for power by averaging theindividually 
calculated power points for each value of speed andtorque recorded 
during the sampling period. As an alternative, thefinal value for power 
can be calculated from the average values forspeed and torque, collected 
during the sampling period.
    (e) Determine the final value for CO2, CO, HC, 
andNOX concentrations by averaging the concentration of 
eachpoint taken during the sample period for each mode.



Sec. 90.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. Theanalyzer 
response may be read by automatic data collection (ADC)equipment such as 
computers, data loggers, and so forth. If ADCequipment is used, the 
following is required:
    (1) For dilute grab (``bag'') sample analysis, theanalyzer response 
must be stable at greater than 99 percent of thefinal reading for the 
dilute exhaust sample. The ADC must store asingle value representing the 
average chart deflection over a 10-second stabilized period. 
Alternatively, the ADC may store theindividual instantaneous chart 
deflections collected over a 10-secondstabilized period.
    (2) For continuous analysis systems, the ADC must store a 
singlevalue representing the average integrated concentration over 
ameasurement period. Alternatively, the ADC may store the 
individualinstantaneous values collected during the measurement period.
    (3) The chart deflections or average integrated 
concentrationsrequired in paragraphs (a)(1) and (a)(2) of this section 
may be storedon long-term computer storage devices such as computer 
tapes, storagediscs, punch cards, or they may be printed in a listing 
for storage.In either case a chart recorder is not required and records 
from achart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the 
ADCequipment is subject to the calibration specifications of the 
analyzeras if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may 
bestored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysisperform the 
following procedure:
    (1) Calibrate analyzers using the procedure described inSec. 
90.326.
    (2) Record the most recent zero and span response as the pre-
analysis values.
    (3) Measure and record HC, CO, CO2, andNOX 
concentrations in the exhaust sample bag(s) andbackground sample bag(s) 
using the same flow rates and pressures.
    (4) Good engineering practice dictates that exhaust emissionsample 
bag analyzer readings below 15 percent of full scale shouldgenerally not 
be used.
    (5) A post-analysis zero and span calibration check of each 
rangemust be performed and the values recorded. The number of events 
thatmay occur between the pre- and post-checks is not specified. 
However,the difference between pre-analysis zero and span values 
(recorded inparagraph (c)(2) or (c)(3) of this section) versus those 
recorded forthe post-analysis check may not exceed the zero drift limit 
or thespan drift limit of two percent of full-

[[Page 231]]

scale chart deflectionfor any range used. Otherwise the analysis is 
void.
    (d) Continuous sample analysis. For continuous sampleanalysis 
perform the following procedure:
    (1) Calibrate analyzers using the procedure described inSec. 
90.326.
    (2) Leak check portions of the sampling system that operate 
atnegative gauge pressures when sampling and allow heated sample 
lines,filters, pumps, and so forth to stabilize at operating 
temperature.
    (3) Option: Determine the HC hang-up for the FID or HFID 
samplingsystem:
    (i) Zero the analyzer using zero gas introduced at the analyzerport.
    (ii) Flow zero gas through the overflow sampling system. Check 
theanalyzer response.
    (iii) If the overflow zero response exceeds the analyzer 
zeroresponse by two percent or more of the FID or HFID full-
scaledeflection, hang-up is indicated and corrective action must be 
taken(see paragraph (e) of this section).
    (iv) The complete system hang-up check specified in paragraph (e)of 
this section is recommended as a periodic check.
    (4) If necessary, recalibrate analyzer using the procedurespecified 
in paragraph (d)(1) of this section.
    (5) Good engineering practice dictates that analyzers used 
forcontinuous analysis should be operated such that the 
measuredconcentration falls between 15 percent and 100 percent of full 
scale.
    (6) Record the most recent zero and span response as the pre-
analysis values.
    (7) Collect background HC, CO, CO2, andNOX in 
a sample bag (for dilute exhaust sampling only, seeSec. 90.422).
    (8) Perform a post-analysis zero and span check for each rangeused 
at the conditions specified in paragraph (d)(1) of this section.Record 
these responses as the post-analysis values.
    (9) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 
threepercent for HC, or two percent for NOX. CO, 
andCO2, of full-scale chart deflection, or the test is 
void.(If the HC drift is greater than three percent of full-scale 
chartdeflection, HC hang-up is likely.)
    (10) Determine background levels of HC, NOX. CO, 
orCO2 (for dilute exhaust sampling only) by the grab(``bag'') 
technique outlined in paragraph (c) of thissection.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, thefollowing 
procedure may be performed:
    (1) Fill a clean, evacuated sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzerports.
    (4) Analyze the background air through the entire sample 
probesystem.
    (5) If the difference between the readings obtained is two ppm 
ormore, clean the sample probe and the sample line.
    (6) Reassemble the sample system, heat to specified temperature,and 
repeat the procedure in paragraphs (e)(1) through (e)(5) of thissection.



Sec. 90.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling andanalytical system 
which may be used for testing under this subpart isshown in Figure 2 in 
Appendix B of Subpart D. All components or partsof components that are 
wetted by the sample or corrosive calibrationgases must be either 
chemically cleaned stainless steel or inertmaterial (e.g., 
polytetrafluoroethylene resin). The use of``gauge savers'' or 
``protectors'' withnonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe must be a straight,closed 
end, stainless steel, multi-hole probe. The inside diameter maynot be 
greater than the inside diameter of the sample line +0.03 cm.The wall 
thickness of the probe may not be greater than 0.10 cm. Thefitting that 
attaches the probe to the exhaust pipe must be as smallas practical in 
order to minimize heat loss from the probe.
    (2) The probe must have a minimum of three holes. The spacing ofthe 
radial planes for each hole in the probe

[[Page 232]]

must be such thatthey cover approximately equal cross-sectional areas of 
the exhaustduct. See Figure 2 in Appendix B of Subpart D. The angular 
spacing ofthe holes must be approximately equal. The angular spacing of 
any twoholes in one plane may not be 180[deg] 20[deg] (i.e.,section view C-C of Figure 2 in Appendix B 
of Subpart D). The holesshould be sized such that each has approximately 
the same flow. Ifonly three holes are used, they may not all be in the 
same radialplane.
    (3) The exhaust gas probe must be located in a position whichyields 
a well mixed, homogenous sample of the engine exhaust. Theprobe must 
extend radially across the exhaust gas stream. The probemust pass 
through the approximate center and must extend across atleast 80 percent 
of the exhaust gas stream. The exact position of theprobe may vary from 
engine family to engine family.
    (c) Mixing chamber. The exhaust mixing chamber is located inthe 
exhaust system between the muffler and the sample probe. Themixing 
chamber is an optional component of the raw gas samplingequipment.
    (1) The internal volume of the mixing chamber may not be less 
thanten times the cylinder displacement of the engine under test. 
Theshape of the mixing chamber must be such that it provides a 
wellmixed, homogenous sample at the sample probe location.
    (2) Couple the mixing chamber as closely as possible to the 
enginemuffler.
    (3) Maintain the inner surface of the mixing chamber at a 
minimumtemperature of 179 [deg]C.
    (4) Thermocouple temperature monitoring of the mixing chamberinner 
surface is required to assure wall temperatures specified inparagraph 
(c)(3) of this section. The temperature measurement must beaccurate to 
within 5 [deg]C.
    (5) The sample probe must extend radially across the exit of 
themixing chamber. The probe must pass through the approximate center 
andmust extend across at least 80 percent of the diameter of the 
exit.The exact position of the probe may vary from engine family to 
enginefamily. The probe must be located in a position which yields a 
wellmixed, homogenous sample of the exhaust.
    (d) Sample transfer line. (1) The maximum inside diameter ofthe 
sample line may not exceed 1.32 cm.
    (2) If valve V2 in Figure 1 of Appendix B of this subpart is 
used,the sample probe must connect directly to valve V2. The location 
ofoptional valve V2 in Figure 1 of Appendix B of Subpart D may not 
begreater than 1.22 m from the exhaust duct.
    (3) The location of optional valve V16, Figure 1 of Appendix B 
ofthis subpart, may not be greater than 61 cm from the sample pump. 
Theleakage rate for this section on the pressure side of the sample 
pumpmay not exceed the leakage rate specification for the vacuum side 
ofthe pump.
    (e) Venting. All vents, including analyzer vents, bypassflow, and 
pressure relief vents, of regulators should be vented insuch a manner as 
to avoid endangering personnel in the immediate area.
    (f) Any variation from the specifications in this subpart,including 
performance specifications and emission detection methods,may be used 
only with prior approval by the Administrator.
    (g) Additional components, such as instruments, valves, 
solenoids,pumps, switches, and so forth, may be employed to provide 
additionalinformation and coordinate the functions of the component 
systems.
    (h) The following requirements must be incorporated in each 
systemused for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe 
andsplit it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipeto 
the HC analyzer for the raw gas sampling method as indicated inFigure 1 
in Appendix B of this subpart. The NOX analyzerfor the raw 
gas sampling method may be heated as indicated in Figure 1in Appendix B 
of this subpart. The HC analyzer and the NOXanalyzer for the 
dilute sampling method may be heated as indicated inFigure 1 in Appendix 
B of this subpart.

[[Page 233]]



Sec. 90.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extractsolid 
particles from the flow of gas required for analysis. The sampleline for 
HC measurement must be heated. The sample line for CO,CO2 and 
NOX analysis may be heated orunheated.



Sec. 90.416  Intake air flow measurement specifications.

    (a) If used, the engine intake air flow measurement method usedmust 
have a range large enough to accurately measure the air flow overthe 
engine operating range during the test. Overall measurementaccuracy must 
be two percent of full-scale value of the measurementdevice for all 
modes except the idle mode. For the idle mode, themeasurement accuracy 
must be five percent or less of thefull-scale 
value. The Administrator must be advised of the method usedprior to 
testing.
    (b) When an engine system incorporates devices that affect the 
airflow measurement (such as air bleeds, air injection, pulsed air, 
andso forth) resulting in understated exhaust emission results, 
makecorrections to the exhaust emission results to account for 
sucheffects.



Sec. 90.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing. Fuelflow 
is allowed for dilute testing.
    (b) The fuel flow measurement instrument must have a minimumaccuracy 
of one percent of full-scale flow rate for each measurementrange used. 
An exception is allowed for the idle mode. For this mode,the minimum 
accuracy is five percent of full-scale flow 
ratefor the measurement range used. The controlling parameters are 
theelapsed time measurement of the event and the weight or 
volumemeasurement. You may apply the accuracy specifications of 40 CFR 
part1065, subpart C, instead of those in this paragraph (b).

[70 FR 40449, July 13, 2005]



Sec. 90.418  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emissions recording, record 
thelast two minutes of each mode and determine the average values for 
HC,CO, CO2 and NOX during each mode from 
theaverage concentration readings determined from the 
correspondingcalibration data. Longer averaging times are acceptable, 
but thereported sampling period must be a continuous set of data.

[70 FR 40449, July 13, 2005]



Sec. 90.419  Raw emission sampling calculations--gasoline fueled engines.

    (a) Derive the final weighted brake-specific mass emission rates(g/
kW-hr) through the steps described in this section.
    (b) Air and fuel flow method. If both air and fuel flow massrates 
are measured, use the following equations to determine theweighted 
emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR03JY95.016

Where:

WHC = Mass rate of HC in exhaust [g/hr],

[[Page 234]]

GAIRD = Intake air mass flow rate on dry basis[g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in theexhaust, see 
the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.017

Where:

[alpha] = Hydrogen/carbon atomic ratio of the fuel
[beta] = Oxygen/carbon atomic ratio of the fuel
Mexh = Molecular weight of the total exhaust, see 
thefollowing equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.018

Where:

WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in theexhaust, 
wet
DCO2 = CO2 percent concentration in theexhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WO2 = O2 percent concentration in theexhaust, wet
WH2 = H2 percent concentration in exhaust,wet
K = correction factor to be used when converting dry measurementsto a 
wet basis. Therefore, wet concentration=dry concentrationx K,
where K is:
[GRAPHIC] [TIFF OMITTED] TR03JY95.019

DH2 = H2 percent concentration in exhaust,dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.020

Wco = Mass rate of CO in exhaust, [g/hr]
Mco = Molecular weight of CO=28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2=46.01
KH = Factor for correcting the effects of humidity 
onNO2 formation for 4-stroke gasoline small engines, 
asfollows:

KH = (9.953 x H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describeshow to 
determine this value (referred to asxH2O).
KH = 1 for two-stroke gasoline engines.

    (c) Fuel flow method. The following equations are to be usedwhen 
fuel flow is selected as the basis for mass emission calculationsusing 
the raw gas method.

[[Page 235]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.022

Where:
WHC = Mass rate of HC in exhaust, [g/hr]
MHCexh = Molecular weight of hydrocarbons in theexhaust, see 
following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.023

MC = Molecular weight of carbon=12.01 [g/mole]
MH = Molecular weight of hydrogen=1.008 [g/mole]
MO = Molecular weight of oxygen=16.00 [g/mole]
[alpha] = Hydrogen to carbon ratio of the test fuel
[beta] = Oxygen to carbon ratio of the test fuel
MF = Molecular weight of test fuel
GFUEL = Fuel mass flow rate, [g/hr]
TC=Total carbon in exhaust, see following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.024

WCO = CO percent concentration in the exhaust, wet
WCO2 = CO2 percent concentration in theexhaust, 
wet
DCO = CO percent concentration in the exhaust, dry
DCO2 = CO2 percent concentration in theexhaust, 
dry
WHC = HC volume concentration in exhaust, ppmC wet
WNOX = NOX volume concentration inexhaust, ppm wet
K = correction factor to be used when converting dry measurementsto a 
wet basis. Therefore, wet concentration=dryconcentrationxK, where K is:
[GRAPHIC] [TIFF OMITTED] TR03JY95.025

DH2 = H2 percent concentration in exhaust,dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.026

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOX = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2=46.01
    KH = Factor for correcting the effects of humidity 
onNO2 formation for 4-stroke gasoline small engines, 
asfollows:
    KH = (9.953 x H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describeshow to 
determine this value (referred to asxH2O).
KH = 1 for two-stroke gasoline engines.

    (d) Calculate the final weighted brake-specific emission rate 
foreach individual gas component using the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.028

Where:
AWM = Final weighted brake-specific massemission rate (HC, 
CO, NOX) [g/kW-hr]
Wi = Mass emission rate during mode i [g/hr]
WFi = Weighting factors for each mode according toSec. 
90.410(a)
Pi = Gross average power generated during mode i 
[kW],calculated from the following equation,
[GRAPHIC] [TIFF OMITTED] TR03JY95.029

Where:

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]

[60 FR 34598, July 13, 1995, as amended at 70 FR 40449, July13, 2005]

[[Page 236]]



Sec. 90.420  CVS concept of exhaust gas sampling system.

    (a) A dilute exhaust sampling system is designed to directlymeasure 
the true mass of emissions in engine exhaust without thenecessity of 
measuring either fuel flow or intake air flow. This isaccomplished by 
diluting the exhaust produced by a test engine withambient background 
air and measuring the total diluted exhaust flowrate and the 
concentration of emissions within the dilute flow. Totalmass flow of an 
emission is then easily calculated.
    (b) A constant volume sampler (CVS) is typically used to controlthe 
total amount of dilute flow through the system. As the nameimplies, a 
CVS restricts flow to a known value dependent only on thedilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consistof: 
a mixing tunnel into which the engine exhaust and dilutant(background) 
air are dumped; a dilute exhaust flow metering system; adilute exhaust 
sample port; a background sample port; a dilute exhaustsampling system; 
and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructedsuch that 
complete mixing of the engine exhaust and background air isassured prior 
to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flowmetering 
system must be used to control the total flow rate of thedilute engine 
exhaust as described in Sec. 90.421.
    (3) Exhaust sample port. A dilute exhaust sample port mustbe located 
in or downstream of the mixing tunnel at a point wherecomplete mixing of 
the engine exhaust and background air is assured.
    (4) Background sample port. A dilute exhaust sample portmust be 
located in the stream of background air before it is mixedwith the 
engine exhaust. The background probe must draw arepresentative sample of 
the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust samplingsystem 
controls the flow of samples from the mixing tunnel to theanalyzer 
system. This could be either a continuous sampling system orgrab (bag) 
sampling system. If a critical flow venturi (CFV) is usedon the dilute 
exhaust sample probe, this system must assure that thesample CFV is in 
choke flow during testing. If no CFV is used, thissystem must assure a 
constant volumetric flow rate through the diluteexhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background samplingsystem 
controls the flow of samples from the background air supply tothe 
analyzer system. This could be either a continuous sampling systemor 
grab (bag) sampling system. This system must assure a constantvolumetric 
flow rate through the background sample probe.



Sec. 90.421  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described inthis 
section is designed to measure the true mass of gaseous emissionsin the 
exhaust of nonroad small spark-ignition engines. This systemutilizes the 
Constant Volume Sampling (CVS) concept (described inSec. 90.420) of 
measuring mass emissions of HC,NOX. CO, and CO2. 
Grab sampling for individualmodes is an acceptable method of dilute 
testing for all constituents,HC, NOX. CO, and CO2. 
Continuous dilutesampling is not required for any of the exhaust 
constituents, but isallowable for all. Heated sampling is not required 
for any of theconstituents, but is allowable for HC and NOX. 
The mass ofgaseous emissions is determined from the sample concentration 
andtotal flow over the test period. As an option, the measurement 
oftotal fuel mass consumed over a cycle may be substituted for 
theexhaust measurement of CO2. General requirements are 
asfollows:
    (1) This sampling system requires the use of a PositiveDisplacement 
Pump--Constant Volume Sampler (PDP-CVS) system witha heat exchanger, or 
a Critical Flow Venturi--Constant VolumeSampler (CFV-CVS) system with 
CFV sample probes and/or a heatexchanger or electronic flow 
compensation. Figure 2 in Appendix B ofthis subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 inAppendix

[[Page 237]]

B of this subpart is a schematic drawing of the CFV-CVSsystem.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 orFigure 3 in 
Appendix B of this subpart) and analytical capabilities(see Sec. 
90.423, and Figure 4 in Appendix B of thissubpart), or
    (ii) Continuously integrated measurement of diluted HC meeting 
theminimum requirements and technical specifications contained 
inparagraph (b)(2) of this section.
    (iii) The dilute HC analytical system for nonroad small spark-
ignition engines does not require a heated flame ionization 
detector(HFID).
    (iv) If used, the HFID sample must be taken directly from thediluted 
exhaust stream through a heated probe and integratedcontinuously over 
the test cycle.
    (v) The heated probe must be located in the sampling system 
farenough downstream of the mixing area to ensure a uniform 
sampledistribution across the CVS duct at the sampling zone.
    (3) The CO and CO2 analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 orFigure 3 in 
Appendix B of this subpart) and analytical capabilities(see Sec. 
90.423, and Figure 4 in Appendix B of thissubpart), or
    (ii) Continuously integrated measurement of diluted CO 
andCO2 meeting the minimum requirements and 
technicalspecifications contained in paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 orFigure 3 in 
Appendix B of this subpart) and analytical capabilities(see Sec. 
90.423, and Figure 4 in Appendix B of thissubpart), or
    (ii) A continuously integrated measurement of dilutedNOX 
meeting the minimum requirements and technicalspecifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent 
results,exact conformance with these drawings is not required. 
Additionalcomponents such as instruments, valves, solenoids, pumps, and 
switchesmay be used to provide additional information and coordinate 
thefunctions of the component systems. Other components, such 
assnubbers, which are not needed to maintain accuracy on some 
systems,may be excluded if their exclusion is based upon good 
engineeringjudgment.
    (6) Other sampling and/or analytical systems may be used if shownto 
yield equivalent results and if approved in advance by theAdministrator.
    (b) Component description. The components necessary forexhaust 
sampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to allof the 
requirements listed for the exhaust gas PDP-CVS inSec. 90.420 of this 
chapter. The CFV-CVS must conform to allof the requirements listed for 
the exhaust gas CFV-CVS inSec. 90.420 of this chapter. In addition, the 
CVS mustconform to the following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintainthe 
diluted exhaust stream in the dilution system at a temperature of190 
[deg]C or less at the sampling zone for hydrocarbon measurementand as 
required to prevent condensation at any point in the dilutionsystem. 
Gaseous emission samples may be taken directly from thissampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic 
flowcompensation is required (see Figure 3 in Appendix B of this 
subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gasmixture 
temperature, measured at a point immediately ahead of thecritical flow 
venturi, must be within 11 [deg]C of theaverage 
operating temperature observed during the test with thesimultaneous 
requirement that condensation does not occur. Thetemperature measuring 
system (sensors and readout) must have anaccuracy and precision of 
2 [deg]C. For systems utilizing aflow compensator 
to maintain proportional flow, the requirement formaintaining constant 
temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HCsample 
system (as shown in Figure 2 or 3 in Appendix B of thissubpart) uses an 
``overflow'' zero and span system. Inthis type of system, excess zero or 
span gas spills

[[Page 238]]

out of theprobe when zero and span checks of the analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous 
HCsample probe, line, or system, unless a common sample pump is used 
forall analyzers and the sample line system design reflects 
goodengineering practice.
    (iii) The overflow gas flow rates into the sample line must be 
atleast 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close 
aspractical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (whichfor 
a HFID analyzer must raise the sample to the specifiedtemperature) and, 
where used, a sample transfer system (which for aHFID must maintain the 
specified temperature). The HFID continuoushydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190 11 
[deg]C asmeasured at every separately controlled heated component (that 
is,filters, heated line sections), using permanent thermocouples 
locatedat each of the separate components.
    (B) Have a wall temperature of 190 11 [deg]C 
over itsentire length. The temperature of the system is demonstrated 
byprofiling the thermal characteristics of the system where possible 
atinitial installation and after any major maintenance performed on 
thesystem. The profiling is to be accomplished using the 
insertionthermocouple probing technique. The system temperature must 
bemonitored continuously during testing at the locations and 
temperaturedescribed in Sec. 90.421(b)(2).
    (C) Maintain a gas temperature of 190 11 
[deg]Cimmediately before the heated filter and HFID. Determine these 
gastemperatures by a temperature sensor located immediately upstream 
ofeach component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the 
continuoushydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where thedilution 
air and exhaust are well mixed and provide a homogenousmixture.
    (D) Is sufficiently distant (radially) from other probes and 
thesystem wall so as to be free from the influence of any wakes 
oreddies.
    (E) For a continuous HFID sample probe, the probe must increasesthe 
gas stream temperature to 190 11 [deg]C at the 
exit ofthe probe. Demonstrate the ability of the probe to accomplish 
thisusing the insertion thermocouple technique at initial installation 
andafter any major maintenance. Demonstrate compliance with 
thetemperature specification by continuously recording during each 
testthe temperature of either the gas stream or the wall of the 
sampleprobe at its terminus.
    (vii) The response time of the continuous measurement system mustbe 
taken into account when logging test data.
    (3) Sample mixing. (i) Configure the dilution system toensure a well 
mixed, homogeneous sample prior to the samplingprobe(s).
    (ii) Make the temperature of the diluted exhaust stream inside 
thedilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where itis 
introduced into the dilution system.
    (4) Continuously integrated NOX, CO, andCO2 
measurement systems--(i) Sampleprobe requirements:
    (A) The sample probe for continously intergrated NOX.CO, 
and CO2 must be in the same plane as the continuous HCprobe, 
but sufficiently distant (radially) from other probes and thetunnel wall 
so as to be free from the influences of any wakes oreddies.
    (B) The sample probe for continously intergrated NOX.CO, 
and CO2 must be heated and insulated over the entirelength, 
to prevent water condensation, to a minimum temperature of 55[deg]C. 
Sample gas temperature immediately before the first filter inthe system 
must be at least 55 [deg]C.
    (ii) Conform to the continuous NOX, CO, orCO2 
sampling and analysis system to the specifications of40 CFR 1065.145, 
with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to 
preventwater

[[Page 239]]

condensation, the minimum component temperature is 55[deg]C.
    (B) Coordinate analysis system response time with CVS 
flowfluctuations and sampling time/test cycle offsets, if necessary.
    (C) Use only analytical gases conforming to the specifications 
ofSec. 90.312 of this subpart for calibration, zero and spanchecks.
    (D) Use a calibration curve conforming to Sec. 90.321for CO and 
CO2 and Sec. 90.318 forNOX for any range on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of 
analyzerswith non-linear calibration curves to concentration values by 
thecalibration curve(s) specified in Sec. 90.321 of thischapter before 
flow correction (if used) and subsequent integrationtakes place.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July13, 2005]



Sec. 90.422  Background sample.

    (a) Background samples are produced by drawing a sample of 
thedilution air during the exhaust collection phase of each test 
cyclemode.
    (1) An individual background sample may be produced and analyzedfor 
each mode. Hence, a unique background value will be used for theemission 
calculations for each mode.
    (2) Alternatively, a single background sample may be produced 
bydrawing a sample during the collection phase of each test cycle 
mode.Hence, a single cumulative background value will be used for 
theemission calculations for each mode.
    (b) For analysis of the individual sample described in 
paragraph(a)(1) of this section, a single value representing the average 
chartdeflection over a 10-second stabilized period must be stored. 
Allreadings taken during the data logging period must be stable 
withinone percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaustand 
background concentrations in the sample bag(s) with approximatelythe 
same flow rates and pressures used during calibration.



Sec. 90.423  Exhaust gas analytical system; CVS grab sample.

    (a) Schematic drawings. Figure 4 in Appendix B of thissubpart is a 
schematic drawing of the exhaust gas analytical systemsused for 
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since 
various configurations can produce accurateresults, exact conformance 
with the drawing is not required.Additional components such as 
instruments, valves, solenoids, pumpsand switches may be used to provide 
additional information andcoordinate the functions of the component 
systems. Other componentssuch as snubbers, which are not needed to 
maintain accuracy in somesystems, may be excluded if their exclusion is 
based upon goodengineering judgment.
    (b) Major component description. The analytical system,Figure 4 in 
Appendix B of this subpart, consists of a flame ionizationdetector (FID) 
or a heated flame ionization detector (HFID) for themeasurement of 
hydrocarbons, non-dispersive infrared analyzers (NDIR)for the 
measurement of carbon monoxide and carbon dioxide, and 
achemiluminescence detector (CLD) (or heated CLD (HCLD)) for 
themeasurement of oxides of nitrogen. The exhaust gas analytical 
systemmust conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide presentin 
the sample be converted to nitric oxide before analysis. Othertypes of 
analyzers may be used if shown to yield equivalent resultsand if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free 
ofCO2 and water vapor interference, the use of 
theconditioning column may be deleted. (See Sec. 90.317 andSec. 
90.320.)
    (3) A CO instrument is considered to be essentially free 
ofCO2 and water vapor interference if its response to 
amixture of three percent CO2 in N2, which hasbeen 
bubbled through water at room temperature, produces an equivalentCO 
response, as measured on the most sensitive CO range, which is lessthan 
one percent of full-scale CO concentration on ranges above 300ppm full 
scale or less than three ppm on ranges below 300 ppm fullscale. (See 
Sec. 90.317.)
    (c) Alternate analytical systems. Analysis systems meetingthe 
specifications

[[Page 240]]

and requirements of this subpart for dilutesampling may be used upon 
approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzersand 
equipment may be used if shown to yield equivalent results and 
ifapproved in advance by the Administrator.



Sec. 90.424  Dilute sampling procedures--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter andrestrictor 
valve.
    (1) The flowmeter calibration must be traceable to the 
NationalInstitute for Standards and Testing (NIST) and serves as the 
referencevalue (NIST ``true'' value) for the CVS calibration.(Note: In 
no case should an upstream screen or other restriction whichcan affect 
the flow be used ahead of the flowmeter unless calibratedthroughout the 
flow range with such a device.)
    (2) The CVS calibration procedures are designed for use of 
a``metering venturi'' type flowmeter. Large radius orAmerican Society of 
Mechanical Engineers (ASME) flow nozzles areconsidered equivalent if 
traceable to NIST measurements. Othermeasurement systems may be used if 
shown to be equivalent under thetest conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recordedand 
related to flow through the CVS.
    (4) Procedures using both PDP-CVS and CFV-CVS are outlined in 
thefollowing paragraphs. Other procedures yielding equivalent results 
maybe used if approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification 
ofthe entire system may be performed by injecting a known mass of 
gasinto the system and comparing the mass indicated by the system to 
thetrue mass injected. An indicated error does not necessarily mean 
thatthe calibration is wrong, since other factors can influence 
theaccuracy of the system (for example, analyzer calibration, leaks, 
orHC hangup). A verification procedure is found in paragraph (e) of 
thissection.
    (c) PDP-CVS calibration. (1) The following calibrationprocedure 
outlines the equipment, the test configuration, and thevarious 
parameters which must be measured to establish the flow rateof the CVS 
pump.
    (i) All the parameters related to the pump are 
simultaneouslymeasured with the parameters related to a flowmeter which 
is connectedin series with the pump.
    (ii) The calculated flow rate, in cm\3\/s, (at pump inlet 
absolutepressure and temperature) can then be plotted versus a 
correlationfunction which is the value of a specific combination of 
pumpparameters.
    (iii) The linear equation which relates the pump flow and 
thecorrelation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, 
acalibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of 
theabsolute values of the pump and flowmeter parameters that relate 
theflow rate at each point. Two conditions must be maintained to 
assurethe accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained duringcalibration. 
(Flowmeters are sensitive to inlet temperatureoscillations; this can 
cause the data points to be scattered. Gradualchanges in temperature are 
acceptable as long as they occur over aperiod of several minutes.)
    (ii) All connections and ducting between the flowmeter and the 
CVSpump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these 
samepump parameters enables the user to calculate the flow rate from 
thecalibration equation.
    (4) Connect a system as shown in Figure 5 in Appendix B of 
thissubpart. Although particular types of equipment are shown, 
otherconfigurations that yield equivalent results may be used if 
approvedin advance by the Administrator. For the system indicated, 
thefollowing measurements and accuracies are required:

[[Page 241]]



                      Calibration Data Measurements
------------------------------------------------------------------------
                                                         Sensor-readout
           Parameter             Symbol      Units         tolerances
------------------------------------------------------------------------
Barometric pressure             PB        kPa          .340 kPa.
Ambient temperature...........  TA        [deg]C       .28[deg]C
                                                        .
Air temperature into metering   ETI       [deg]C       1.11[deg]
                                                        C.
Pressure drop between the       EDP       kPa          0.012
 meteringventuri.                                       kPa.
Air flow......................  QS        m\3\/min.    0.5
                                                        percent of
                                                        NISTvalue.
Air temperature at CVS pump     PTI       [deg]C       1.11[deg]
                                                        C.
Pressure depression at CVS      PPI       kPa          0.055kPa.
Pressure head at CVS pump       PPO       kPa          0.055
                                                        kPa.
Air temperature at CVS pump     PTO       [deg]C       1.11
                                                        [deg]C.
Pump revolutions during test    N         Revs         1 Rev.
Elapsed time for test period..  t         s            0.5 s.
------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 
inAppendix B of this subpart, set the variable restrictor in the 
wideopen position and run the CVS pump for 20 minutes. Record 
thecalibration data.
    (6) Reset the restrictor valve to a more restricted condition inan 
increment of pump inlet depression that will yield a minimum of sixdata 
points for the total calibration. Allow the system to stabilizefor three 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point 
iscalculated in standard cubic feet per minute 20 [deg]C, 101.3 kPafrom 
the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow,Vo, 
in cubic meter per revolution at absolute pump inlettemperature and 
pressure:
[GRAPHIC] [TIFF OMITTED] TR03JY95.031

Where:

Vo = Pump flow, m\3\/rev at Tp,Pp.
Qs = Meter air flow rate in standard cubic meters perminute, 
standard conditions are 20 [deg]C, 101.3 kPa.
n = Pump speed in revolutions per minute.
Tp = Absolute pump inlet temperature in Kelvin, =PTI+273 
[[deg]K]
Pp = Absolute pump inlet pressure, kPa. =PB-PPI

Where:

PB = barometric pressure, kPa
PPI = Pump inlet depression, kPa.

    (iii) The correlation function at each test point is thencalculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR03JY95.032

Where:

Xo = correlation function.
[Delta]p = The pressure differential from pump inlet to pumpoutlet [kPa]
    [Delta]p = Pe-Pp.

Where:

Pe = Absolute pump outlet pressure [kPa],Pe = 
PB+PPI

    (iv) A linear least squares fit is performed to generate 
thecalibration equation which has the form:
[GRAPHIC] [TIFF OMITTED] TR03JY95.033

Where:

Do and M are the intercept and slope constants,respectively, 
describing the regression line.

    (8) A CVS system that has multiple speeds should be calibrated 
oneach speed used. The calibration curves generated for the ranges 
willbe approximately parallel and the intercept values, 
Do,will increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, thecalculated 
values from the equation will be within 0.50percent of the measured value of Vo. 
Values of M will varyfrom one pump to another, but values of 
Do for pumps ofthe same make, model, and range should agree 
within threepercent of each other. Calibrations 
should be performed at pump start-up and after major maintenance to 
assure the stability of the pumpslip rate. Analysis of

[[Page 242]]

mass injection data will also reflect pumpslip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is basedupon the 
flow equation for a critical venturi. Gas flow is a functionof inlet 
pressure and temperature:
[GRAPHIC] [TIFF OMITTED] TR03JY95.034

Where:

Qs = flow rate [m\3\/min.]
Kv = calibration coefficient
P = absolute pressure [kPa]
T = absolute temperature [[deg]K]

    The calibration procedure described in paragraph (d)(3) of 
thissection establishes the value of the calibration coefficient 
atmeasured values of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure must be followed 
forcalibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
            Parameter                    Symbol               Units                      Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric Pressure (corrected).  PB                   kPa                  .34 kPa
Air temperature, into flowmeter.  ETI                  [deg]C               .28[deg]C
Pressure drop between the inlet   EDP                  in. H2 O             .05 inH2 O
 and throat of meteringventuri.
Air flow........................  QS                   m\3\/min             .5 percent
                                                                             ofNIST value
CFV inlet depression............  PPI                  (kPa)                .055 kPa
Temperature at venturiinlet.....  TV                   [deg]C               2.22 [deg]C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in Appendix B of 
thissubpart and eliminate leaks. (Leaks between the flow measuring 
devicesand the critical flow venturi will seriously affect the accuracy 
ofthe calibration.)
    (5) Set the variable flow restrictor to the open position, startthe 
blower, and allow the system to stabilize. Record data from 
allinstruments.
    (6) Vary the flow restrictor and make at least eight readingsacross 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibrationare to be 
used in the following calculations:
    (i) Calculate the air flow rate (designated as Qs) ateach 
test point in standard cubic feet per minute from the flow meterdata 
using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each 
testpoint:
[GRAPHIC] [TIFF OMITTED] TR03JY95.035

Where:

Qs = Flow rate in standard cubic meters per minute, atthe 
standard conditions of 20 [deg]C, 101.3 kPa.
Tv = Temperature at venturi inlet, [deg]K.
Pv = Pressure at venturi inlet, kPa = PB- 
PPI

Where:

PPI = Venturi inlet pressure depression, kPa.

    (iii) Plot Kv as a function of venturi inletpressure. For 
choked flow, Kv will have a relativelyconstant value. As 
pressure decreases (vacuum increases), the venturibecomes unchoked and 
Kv decreases. (See Figure 7 inAppendix B to Subpart D.)
    (iv) For a minimum of eight points in the critical region,calculate 
an average Kv and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the 
averageKv , take corrective action.
    (e) CVS system verification. The following``gravimetric'' technique 
may be used to verify that theCVS and analytical instruments can 
accurately measure a mass of gasthat has been injected into the system. 
(Verification can also beaccomplished by constant flow metering using 
critical flow orificedevices.)
    (1) Obtain a small cylinder that has been charged with 99.5percent 
or greater propane or carbon monoxide gas(CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01grams.
    (3) Operate the CVS in the normal manner and release a quantity 
ofpure propane into the system during the

[[Page 243]]

sampling period(approximately five minutes).
    (4) The calculations are performed in the normal way except in 
thecase of propane. The density of propane (0.6109 kg/m\3\/carbon 
atom)is used in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured massand 
then divided by the gravimetric mass to determine the percentaccuracy of 
the system.
    (6) Good engineering practice requires that the cause for 
anydiscrepancy greater than two percent must be 
found andcorrected.



Sec. 90.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flowventuri 
following initial installation, major maintenance, or asnecessary when 
indicated by the CVS system verification (described inSec. 90.424(e)).



Sec. 90.426  Dilute emission sampling calculations--gasoline fueledengines.

    (a) The final reported emission test results must be computed byuse 
of the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.036

Where:

AWM = Final weighted brake-specific mass emission ratefor an 
emission (HC, CO, CO2, or NOX) [g/kW-hr]
Wi = Average mass flow rate of an emission (HC, 
CO,CO2, NOX) from a test engine during mode i[g/
hr]
WFi = Weighting factor for each mode i as defined inSec. 
90.410(a).
Pi = Gross average power generated during mode i 
[kW],calculated from the following equation,
[GRAPHIC] [TIFF OMITTED] TR03JY95.037

Where:

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]
    KHi = NOX humidity correction factor formode 
i. This correction factor only affects calculations for tionfactor only 
affects calculations for NOX and is equal toone for all other 
emissions. KHi is also equal to 1 forall two-stroke engines.

    (b) The mass flow rate, Wi in g/hr, of an emission 
formode i is determined from the following equations:
[GRAPHIC] [TIFF OMITTED] TR03JY95.038

Where:

Qi = Volumetric flow rate oandard conditions [m\3\/hrat STP].
Density = Density of a specific emission 
(DensityHC,DensityCO, DensityCO2, 
DensityNOx)[g/m\3\].
DFi = Dilution factor of the dilute exhaust duringmode i.
CDi = Concentration of the emission (HC, CO,NOX) 
in dilute exhaust extracted from the CVS during modei [ppm].
CBi = Concentration of the emission (HC, CO,NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetriccalculations made 
for the equations in this section are to becorrected to a standard 
temperature of 20 [deg]C and 101.3 kPa.

    (c) Densities for emissions that are to be measured for this 
testprocedure are:

DensityHC = 576.8 g/m\3\
DensityNOX = 1912 g/m\3\
DensityCO = 1164 g/m\3\
DensityCO2 = 1829 g/m\3\

    (1) The value of DensityHC above is calculated basedon 
the assumption that the fuel used has a carbon to hydrogen ratio 
of1:1.85. For other fuels DensityHC can be calculated fromthe 
following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.039

Where:

MHC = The molecular weight of the hydrocarbon moleculedivided 
by the number of carbon atoms in the molecule [g/mole]
RSTP = Ideal gas constant for a gas at STP=0.024065[m\3\-
mole].

    (2) The idealized molecular weight of the exhaust hydrocarbons,i.e., 
the molecular weight of the hydrocarbon molecule divided by thenumber of 
carbon atoms in the molecule, MHC, can becalculated from the 
following formula:

[[Page 244]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.040

Where:

MC = Molecular weight of carbon=12.01 [g/mole]
MH = Molecular weight of hydrogen=1.008 [g/mole]
MO = Molecular weight of oxygen=16.00 [g/mole]
[alpha] = Hydrogen to carbon ratio of the test fuel
[beta] = Oxygen to carbon ratio of the test fuel

    (3) The value of DensityNOX above assumes 
thatNOX is entirely in the form of NO2
    (d) The dilution factor, DF, is the ratio of the volumetric flowrate 
of the background air to that of the raw engine exhaust. Thefollowing 
formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR03JY95.041

Where:

CDHC = Concentration of HC in the dilute sample [ppm]
CDCO = Concentration of CO in the dilute sample [ppm]
CDCO2 = Concentration of CO2 in the dilutesample 
[ppm]

    (e) The humidity correction factor KH is an 
adjustmentmade to measured NOX values. This corrects for 
thesensitivity that a spark-ignition engine has to the humidity of 
itscombustion air. The following formula is used to 
determineKH for NOX calculations:

KH = (9.953 H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describeshow to 
determine this value (referred to asxH2O).

KH = 1 for two-stroke gasoline engines.

    (f)-(g) [Reserved]
    (h) The fuel mass flow rate, Fi, can be eithermeasured or 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.046

Where:

MFUEL = Mass of fuel consumed by the engine during themode 
[g]
T = Duration of the sampling period [hr]

    (i) The mass of fuel consumed during the mode sampling 
period,MFUEL, can be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.047

Where:

Gs = Mass of carbon measured during the mode samplingperiod 
[g]
R2 = The fuel carbon weight fraction, which is themass of 
carbon in fuel per mass of fuel [g/g]

    The grams of carbon measured during the mode, Gs, canbe 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.048

Where:

HCmass=mass of hydrocarbon emissions for the modesampling 
period [grams]
CO2mass=mass of carbon monoxide emissions for the 
modesampling period [grams]
CO2mass=mass of carbon dioxide emissions for the modesampling 
period [grams]
[alpha]=The atomic hydrogen to carbon ratio of the fuel

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July13, 2005]



Sec. 90.427  Catalyst thermal stress resistance evaluation.

    (a) The purpose of the evaluation procedure specified in thissection 
is to determine the effect of thermal stress on catalystconversion 
efficiency for Phase 1 engines. The thermal stress isimposed on the test 
catalyst by exposing it to quiescent heated air inan oven. The 
evaluation of the effect of such stress on catalystperformance is based 
on the resultant degradation of

[[Page 245]]

theefficiency with which the conversions of specific pollutants 
arepromoted. The application of this evaluation procedure involves 
theseveral steps that are described in the following paragraphs.
    (b) Determination of initial conversion efficiency. (1) Asynthetic 
exhaust gas mixture having the composition specified inSec. 90.329 is 
heated to a temperature of 450 [deg]C5 [deg]C and 
passed through the new test catalyst or,optionally, a test catalyst that 
has been exposed to temperatures lessthan or equal to 500 [deg]C for 
less than or equal to two hours,under flow conditions that are 
representative of anticipated in-useconditions.
    (2) The concentration of each pollutant of interest, that 
is,hydrocarbons, carbon monoxide, or oxides of nitrogen, in the 
effluentof the catalyst is determined by means of the instrumentation 
that isspecified for exhaust gas analysis in subpart D of this part.
    (3) The conversion efficiency for each pollutant is determined by:
    (i) Subtracting the effluent concentration from the 
initialconcentration;
    (ii) Dividing this result by the initial concentration; and
    (iii) Multiplying this result by 100 percent.
    (c) Imposition of thermal stress. (1) The catalyst is placedin an 
oven that has been pre-heated to 1000 [deg]C and thetemperature of the 
air in the oven is maintained at 1000 [deg]C10 
[deg]C for six hours.
    (2) The catalyst is removed from the oven and allowed to cool toroom 
temperature.
    (d) Determination of final conversion efficiency. The stepslisted in 
paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation. (1)The final 
conversion efficiency determined in paragraph (c) of thissection is 
subtracted from the initial conversion efficiencydetermined in paragraph 
(b) of this section.
    (2) This result is divided by the initial conversion efficiency.
    (3) This result is multiplied by 100 percent.
    (f) Determination of compliance with degradation limit. Thepercent 
degradation determined in paragraph (e) of this section mustnot be 
greater than 20 percent.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999]



             Sec. Appendix A to Subpart E of Part90--Tables

      Table 1--Parameters to be Measured orCalculated and Recorded
------------------------------------------------------------------------
                    Parameter                              Units
------------------------------------------------------------------------
Airflow rate (dry), if applicable................  g/h
Fuel flow rate...................................  g/h
Engine Speed.....................................  rpm
Engine Torque Output.............................  N m
Power Output.....................................  kW
Air inlet temperature............................  [deg]C
Air humidity.....................................  mg/kg
Coolant temperature (liquid cooled)..............  [deg]C
Exhaust mixing chamber surface temperature, if     [deg]C
 applicable.
Exhaust sample line temperature, if applicable...  [deg]C
Total Accumulated hours of Engine Operation......  h
Barometric Pressure..............................  kPa
------------------------------------------------------------------------


                                              Table 2--Test Cycles forClass I-A, I-B, and Class I-V Engines
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Mode Speed                          1        2        3        4        5        6        7        8        9        10       11
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Rated Speed
                                                                    Intermediate Speed                Idle
Mode Points--A Cycle.................................  .......  .......  .......  .......  .......        1        2        3        4        5        6
Load Percent--A Cycle................................  .......  .......  .......  .......  .......      100       75       50       25       10        0
Weighting............................................  .......  .......  .......  .......  .......       9%      20%      29%      30%       7%       5%
Mode Points--B Cycle.................................        1        2        3        4        5  .......  .......  .......  .......  .......        6

[[Page 246]]

 
Load Percent--B Cycle................................      100       75       50       25       10  .......  .......  .......  .......  .......        0
Weighting............................................       9%      20%      29%      30%       7%  .......  .......  .......  .......  .......       5%
Mode Points--C Cycle.................................        1  .......  .......  .......  .......  .......  .......  .......  .......  .......        2
Load Percent--C Cycle................................      100  .......  .......  .......  .......  .......  .......  .......  .......  .......        0
Weighting for Phase 1 Engines........................      90%  .......  .......  .......  .......  .......  .......  .......  .......  .......      10%
Weighting for Phase 2 Engines........................      85%  .......  .......  .......  .......  .......  .......  .......  .......  .......      15%
--------------------------------------------------------------------------------------------------------------------------------------------------------


[60 FR 34598, July 3, 1995, as amended at 65 FR 24313, Apr.25, 2000]

[[Page 247]]



             Sec. Appendix B to Subpart E of Part90--Figures

[GRAPHIC] [TIFF OMITTED] TC01MR92.087


[[Page 248]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.088


[[Page 249]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.089


[[Page 250]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.090


[[Page 251]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.006


[[Page 252]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.007


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[GRAPHIC] [TIFF OMITTED] TC01MR92.008



                Subpart F_Selective Enforcement Auditing



Sec. 90.501  Applicability.

    The requirements of subpart F shall be applicable to all 
nonroadengines and vehicles subject to the provisions of subpart A of 
part90.



Sec. 90.502  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions shall also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentageof 
failing engines that can be considered a satisfactory processaverage for 
sampling inspections.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, fuel system, engine calibration, andother parameters as 
designated by the Administrator.
    Inspection criteria means the pass and fail numbersassociated with a 
particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected fromthe 
population of an engine family for emission testing.



Sec. 90.503  Test orders.

    (a) The Administrator shall require any testing under this subpartby 
means of a test order addressed to the manufacturer.
    (b) The test order will be signed by the Assistant Administratorfor 
Air and Radiation or his or her designee. The test order will 
bedelivered in person by an EPA enforcement officer or EPA 
authorizedrepresentative to a company representative or sent by 
registered mail,return receipt requested, to the manufacturer's 
representative

[[Page 254]]

who signed the application for certification submitted by 
themanufacturer, pursuant to the requirements of the applicable 
sectionof subpart B of this part. Upon receipt of a test order, 
themanufacturer shall comply with all of the provisions of this 
subpartand instructions in the test order.
    (c) Information included in test order. (1) The test orderwill 
specify the engine family to be selected for testing, themanufacturer's 
engine assembly plant or associated storage facility orport facility 
(for imported engines) from which the engines must beselected, the time 
and location at which engines must be selected, andthe procedure by 
which engines of the specified family must beselected. The test order 
may specify the configuration to be auditedand/or the number of engines 
to be selected per day. Enginemanufacturers will be required to select a 
minimum of four engines perday unless an alternate selection procedure 
is approved pursuant toSec. 90.507(a), or unless total production of 
the specifiedconfiguration is less than four engines per day. If total 
productionof the specified configuration is less than four engines per 
day, themanufacturer will select the actual number of engines produced 
perday.
    (2) The test order may include alternate families to be selectedfor 
testing at the Administrator's discretion in the event thatengines of 
the specified family are not available for testing becausethose engines 
are not being manufactured during the specified time, orare not being 
stored at the specified assembly plant, associatedstorage facilities or 
port of entry.
    (3) If the specified family is not being manufactured at a rate ofat 
least two engines per day in the case of manufacturers specified inSec. 
90.508(g)(1), or one engine per day in the case ofmanufacturers 
specified in Sec. 90.508(g)(2), over theexpected duration of the audit, 
the Assistant Administrator or his orher designated representative may 
select engines of the alternatefamily for testing.
    (4) In addition, the test order may include other directions 
orinformation essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and 
thecorresponding assembly plants, associated storage facilities, or 
(inthe case of imported engines) port facilities from which 
themanufacturer prefers to have engines selected for testing in 
responseto a test order. In order that a manufacturer's preferred 
location beconsidered for inclusion in a test order for a particular 
enginefamily, the list must be submitted prior to issuance of the 
testorder. Notwithstanding the fact that a manufacturer has submitted 
thelist, the Administrator may order selection at other than a 
preferredlocation.
    (e) Upon receipt of a test order, a manufacturer shall proceed 
inaccordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator shall notissue 
to a manufacturer more Selective Enforcement Auditing (SEA) testorders 
than an annual limit determined by the following:
    (i) for manufacturers with a projected annual production of lessthan 
100,000 engines bound for the United States market for that modelyear, 
the number is two;
    (ii) for manufacturers with a projected annual production of100,000 
or more engines bound for the United States market for thatmodel year, 
by dividing the manufacturer's total number of certifiedengine families 
by five and rounding to the nearest whole number,unless the number of 
engine families is less than eight, in which casethe number is two.
    (2) If a manufacturer submits to EPA in writing prior to or 
duringthe model year a reliable sales projection update or adds 
enginefamilies or deletes engine families from its production, 
thatinformation will be used for recalculating the manufacturer's 
annuallimit of SEA test orders.
    (3) Any SEA test order for which the family or configuration, 
asappropriate, fails under Sec. 90.510 or for which testing isnot 
completed will not be counted against the annual limit.
    (4) When the annual limit has been met, the Administrator mayissue 
additional test orders to test those families or configurationsfor which 
evidence

[[Page 255]]

exists indicating nonconformity, or for whichthe Administrator has 
reason to believe are not being appropriatelyrepresented or tested in 
Production Line Testing conducted undersubpart H of this part, if 
applicable. An SEA test order issuedpursuant to this provision will 
include a statement as to the reasonfor its issuance.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999]



Sec. 90.504  Testing by the Administrator.

    (a) The Administrator may require by test order underSec. 90.503 
that engines of a specified family be selectedin a manner consistent 
with the requirements of Sec. 90.507and submitted to the Administrator 
at the place designated for thepurpose of conducting emission tests. 
These tests will be conducted inaccordance with Sec. 90.508 to 
determine whether enginesmanufactured by the manufacturer conform with 
the regulations withrespect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever theAdministrator 
conducts a test on a test engine or the Administratorand manufacturer 
each conduct a test on the same test engine, theresults of the 
Administrator's test will comprise the official datafor that engine.
    (2) Whenever the manufacturer conducts all tests on a test 
engine,the manufacturer's test data will be accepted as the official 
data,provided that if the Administrator makes a determination based 
ontesting conducted under paragraph (a) of this section that there is 
asubstantial lack of agreement between the manufacturer's test 
resultsand the Administrator's test results, no manufacturer's test data 
fromthe manufacturer's test facility will be accepted for purposes of 
thissubpart.
    (c) If testing conducted under paragraph (a) of this section 
isunacceptable under Sec. 90.503, the Administrator shall:
    (1) Notify the manufacturer in writing of the 
Administrator'sdetermination that the test facility is inappropriate for 
conductingthe tests required by this subpart and the reasons therefor; 
and
    (2) Reinstate any manufacturer's data upon a showing by 
themanufacturer that the data acquired under paragraph (a) of 
thissection was erroneous and the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the 
Administratorreconsider his or her determination in paragraph (b)(2) of 
thissection based on data or information which indicates that changes 
havebeen made to the test facility and these changes have resolved 
thereasons for disqualification.



Sec. 90.505  Maintenance of records; submittal of information.

    (a) The manufacturer of any new nonroad engine subject to any ofthe 
provisions of this subpart shall establish, maintain, and retainthe 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used totest 
engines, as specified in subpart D of this part, in accordancewith Sec. 
90.508 pursuant to a test order issued under thissubpart.
    (2) Individual records. These records pertain to each auditconducted 
pursuant to this subpart and shall include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the engine 
whenthe test began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the audit;
    (iv) A record and description of any repairs performed prior toand/
or subsequent to approval by the Administrator, giving the 
date,associated time, justification, name(s) of the authorizing 
personnel,and names of all supervisory personnel responsible for the 
conduct ofthe repair;
    (v) The date the engine was shipped from the assembly 
plant,associated storage facility or port facility and date the engine 
wasreceived at the testing facility;
    (vi) A complete record of all emission tests performed pursuant 
tothis subpart (except tests performed directly by EPA), including 
allindividual worksheets and/or other documentation relating to 
eachtest, or exact copies thereof, to be in accordance with the 
recordrequirements specified in

[[Page 256]]

Sec. Sec. 90.405, 90.406,90.418, and/or 90.425 as applicable.
    (vii) A brief description of any significant audit eventscommencing 
with the test engine selection process, but not describedunder paragraph 
(a)(2) of this section, including such extraordinaryevents as engine 
damage during shipment.
    (3) The manufacturer shall record test equipment 
description,pursuant to paragraph (a)(1) of this section, for each test 
cell thatcan be used to perform emission testing under this subpart.
    (b) The manufacturer shall retain all records required to 
bemaintained under this subpart for a period of one year aftercompletion 
of all testing in response to a test order. Records may beretained as 
hard copy or reduced to microfilm, floppy disc, and soforth, depending 
upon the manufacturer's record retention procedure,provided that in 
every case all the information contained in the hardcopy is retained.
    (c) The manufacturer shall, upon request by the Administrator,submit 
the following information with regard to engine production:
    (1) Projected U.S. sales data for each engine configuration 
withineach engine family for which certification is requested;
    (2) Number of engines, by configuration and assembly plant,scheduled 
for production for the time period designated in therequest;
    (3) Number of engines, by configuration and by assembly 
plant,storage facility or port facility, scheduled to be stored 
atfacilities for the time period designated in the request; and
    (4) Number of engines, by configuration and assembly plant,produced 
during the time period designated in the request that arecomplete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (e) The manufacturer shall address all reports, 
submissions,notifications, and requests for approvals made under this 
subpart to:Director, Manufacturers Operations Division, U.S. 
EnvironmentalProtection Agency, 6405-J, 401 M St., SW., Washington, 
DC20460.



Sec. 90.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions of this subpart, a test order isissued 
which authorizes EPA enforcement officers or their 
authorizedrepresentatives upon presentation of credentials to enter 
duringoperating hours any of the following places:
    (1) Any facility where any engine to be introduced into 
commerce,including ports of entry, or any emission-related component 
ismanufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a testorder 
or any procedures or activities connected with these tests areor were 
performed;
    (3) Any facility where any engine which is being tested, wastested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating toany 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers or EPA 
authorizedrepresentatives are authorized to perform the following 
inspection-related activities:
    (1) To inspect and monitor any aspects of engine assembly,storage, 
testing and other procedures, and the facilities in whichthese 
procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures 
oractivities, including, but not limited to, engine 
selection,preparation, service accumulation, emission test cycles, 
andmaintenance and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection and testing of an engine incompliance 
with a test order; and
    (4) To inspect and photograph any part or aspect of any engine 
andany component used in the assembly thereof that is reasonably 
relatedto the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives 
areauthorized to obtain reasonable assistance

[[Page 257]]

without cost fromthose in charge of a facility to help the officers 
perform anyfunction listed in this subpart, and they are authorized to 
requestthe recipient of a test order to make arrangements with those 
incharge of a facility operated for the manufacturer's benefit tofurnish 
reasonable assistance without cost to EPA, whether or not therecipient 
controls the facility.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services, the makingavailable on 
an EPA enforcement officer's or EPA authorizedrepresentative's request 
of personnel of the facility being inspectedduring their working hours 
to inform the EPA enforcement officer orEPA authorized representative of 
how the facility operates and toanswer the officer's questions, and the 
performance on request ofemission tests on any engine which is being, 
has been, or will be usedfor SEA testing.
    (2) A manufacturer may be compelled to cause the personalappearance 
of any employee at such a facility before an EPAenforcement officer or 
EPA authorized representative by writtenrequest for his or her 
appearance, signed by the AssistantAdministrator for Air and Radiation, 
served on the manufacturer. Anysuch employee who has been instructed by 
the manufacturer to appearwill be entitled to be accompanied, 
represented, and advised bycounsel.
    (d) EPA enforcement officers or EPA authorized representatives 
areauthorized to seek a warrant or court order authorizing the 
EPAenforcement officers or EPA authorized representatives to 
conductactivities related to entry and access as authorized in this 
section,as appropriate, to execute the functions specified in this 
section.EPA enforcement officers or authorized representatives may 
proceed exparte to obtain a warrant whether or not the EPA enforcement 
officersor EPA authorized representatives first attempted to seek 
permissionof the recipient of the test order or the party in charge of 
thefacilities in question to conduct activities related to entry 
andaccess as authorized in this section.
    (e) A recipient of a test order shall permit an EPA 
enforcementofficer(s) or EPA authorized representative(s) who presents a 
warrantor court order to conduct activities related to entry and access 
asauthorized in this section and as described in the warrant or 
courtorder. The recipient shall also cause those in charge of its 
facilityor a facility operated for its benefit to permit entry and 
access asauthorized in this section pursuant to a warrant or court 
orderwhether or not the recipient controls the facility. In the absence 
ofa warrant or court order, an EPA enforcement officer(s) or 
EPAauthorized representative(s) may conduct activities related to 
entryand access as authorized in this section only upon the consent of 
therecipient of the test order or the party in charge of the 
facilitiesin question.
    (f) It is not a violation of this part or of the Clean Air Act 
forany person to refuse to permit an EPA enforcement officer(s) or an 
EPAauthorized representative(s) to conduct activities related to 
entryand access as authorized in this section if the officer 
orrepresentative appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign 
testingand manufacturing facilities in jurisdictions in which local 
foreignlaw does not prohibit an EPA enforcement officer(s) or an 
EPAauthorized representative(s) from conducting the entry and 
accessactivities specified in this section. EPA will not attempt to make 
anyinspections which it has been informed that local foreign 
lawprohibits.



Sec. 90.507  Sample selection.

    (a) Engines comprising a test sample will be selected at thelocation 
and in the manner specified in the test order. If amanufacturer 
determines that the test engines cannot be selected inthe manner 
specified in the test order, an alternative selectionprocedure may be 
employed, provided the manufacturer requests approvalof the alternative 
procedure prior to the start of test sampleselection, and the 
Administrator approves the procedure.
    (b) The manufacturer shall assemble the test engines of the 
familyselected for testing using its normal mass production process 
forengines to be distributed into commerce. If, between

[[Page 258]]

the time themanufacturer is notified of a test order and the time the 
manufacturerfinishes selecting test engines, the manufacturer implements 
anychange(s) in its production processes, including quality 
control,which may reasonably be expected to affect the emissions of 
theengines selected, then the manufacturer shall, during the 
audit,inform the Administrator of such changes. If the test engines 
areselected at a location where they do not have their operational 
andemission control systems installed, the test order will specify 
themanner and location for selection of components to complete 
assemblyof the engines. The manufacturer shall assemble these components 
ontothe test engines using normal assembly and quality control 
proceduresas documented by the manufacturer.
    (c) No quality control, testing, or assembly procedures will beused 
on the test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
unlessthe Administrator approves the modification in assembly 
procedurespursuant to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s)or 
authorized representative(s), rather than the manufacturer, selectthe 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines theorder 
in which test results are to be used in applying the samplingplan in 
accordance with Sec. 90.510.
    (f) The manufacturer shall keep on hand all untested engines, ifany, 
comprising the test sample until a pass or fail decision isreached in 
accordance with Sec. 90.510(e). The manufacturermay ship any tested 
engine which has not failed in accordance withSec. 90.510(b). However, 
once the manufacturer ships anytest engine, it relinquishes the 
prerogative to conduct retests asprovided in Sec. 90.508(i).



Sec. 90.508  Test procedures.

    (a) For nonroad engines subject to the provisions of this 
subpart,the prescribed test procedures are the appropriate small SI 
enginetest procedures as described in subpart E of this part.
    (b)(1) The manufacturer shall not adjust, repair, prepare, ormodify 
the engines selected for testing and shall not perform anyemission tests 
on engines selected for testing pursuant to the testorder unless this 
adjustment, repair, preparation, modification,and/or tests are 
documented in the manufacturer's engine assembly andinspection 
procedures and are actually performed or unless theseadjustments and/or 
tests are required or permitted under this subpartor are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification and Selective Enforcement Audittesting in 
accordance with Sec. 90.112(c), to any settingwithin the physically 
adjustable range of that parameter, asdetermined by the Administrator in 
accordance withSec. 90.112(a), prior to the performance of any 
tests.However, if the idle speed parameter is one which the 
Administratorhas determined to be subject to adjustment, the 
Administrator shallnot adjust it to any setting which causes a lower 
engine idle speedthan would have been possible within the physically 
adjustable rangeof the idle speed parameter if the manufacturer had 
accumulated 12hours of service on the engine under paragraph (c) of this 
section,all other parameters being identically adjusted for the purpose 
of thecomparison. The manufacturer may be requested to supply 
informationneeded to establish an alternate minimum idle speed. 
TheAdministrator, in making or specifying these adjustments, may 
considerthe effect of the deviation from the manufacturer's 
recommendedsetting on emission performance characteristics as well as 
thelikelihood that similar settings will occur on in-use engines. 
Indetermining likelihood, the Administrator may consider factors suchas, 
but not limited to, the effect of the adjustment on engineperformance 
characteristics and surveillance information from similarin-use engines.
    (c) Service Accumulation. Prior to performing exhaustemission 
testing on an SEA test engine, the manufacturer

[[Page 259]]

mayaccumulate on each engine a number of hours of service equal to 
thegreater of 12 hours or the number of hours the 
manufactureraccumulated during certification on the emission data 
enginecorresponding to the family specified in the test order.
    (1) Service accumulation must be performed in a manner using 
goodengineering judgment to obtain emission results representative 
ofnormal production engines. This service accumulation must beconsistent 
with the new engine break-in instructions contained in theapplicable 
owner's manual.
    (2) The manufacturer shall accumulate service at a minimum rate of12 
hours per engine during each 24-hour period, unless otherwiseapproved by 
the Administrator.
    (i) The first 24 hour period for service shall begin as soon 
asauthorized checks, inspections, and preparations are completed on 
eachengine.
    (ii) The minimum service or mileage accumulation rate does notapply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than 
theminimum rate specified (12 hours per day), then the minimum 
dailyaccumulation rate shall be equal to the manufacturer's service 
target.
    (3) Service accumulation shall be completed on a sufficient numberof 
test engines during consecutive 24-hour periods to assure that thenumber 
of engines tested per day fulfills the requirements ofparagraphs (g)(1) 
and (g)(2) of this section.
    (d) The manufacturer shall not perform any maintenance on 
testengines after selection for testing, nor shall the Administrator 
allowdeletion of any engine from the test sequence, unless requested by 
themanufacturer and approved by the Administrator before any 
enginemaintenance or deletion.
    (e) The manufacturer shall expeditiously ship test engines fromthe 
point of selection to the test facility. If the test facility isnot 
located at or in close proximity to the point of selection, 
themanufacturer shall assure that test engines arrive at the 
testfacility within 24 hours of selection, except that the 
Administratormay approve more time for shipment based upon a request by 
themanufacturer accompanied by a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or 
anemission test because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a testorder 
issued under this subpart, the manufacturer shall notify 
theAdministrator within one working day of receipt of the test order 
asto which test facility will be used to comply with the test order. 
Ifno test cells are available at a desired facility, the 
manufacturermust provide alternate testing capability satisfactory to 
theAdministrator.
    (1) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year of 7,500 or greater shallcomplete 
emission testing at a minimum rate of two engines per 24-hourperiod, 
including each voided test.
    (2) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year of less than 7,500 shallcomplete 
emission testing at a minimum rate of one engine per 24-hourperiod, 
including each voided test.
    (3) The Administrator may approve a lower daily rate of 
emissiontesting based upon a request by a manufacturer accompanied by 
asatisfactory justification.
    (h) The manufacturer shall perform test engine selection,shipping, 
preparation, service accumulation, and testing in such amanner as to 
assure that the audit is performed in an expeditiousmanner.
    (i) Retesting. (1) The manufacturer may retest any enginestested 
during a Selective Enforcement Audit once a fail decision forthe audit 
has been reached in accordance withSec. 90.510(e).
    (2) The Administrator may approve retesting at other times basedupon 
a request by the manufacturer accompanied by a 
satisfactoryjustification.
    (3) The manufacturer may retest each engine a total of threetimes. 
The manufacturer shall test each engine or vehicle the samenumber of 
times. The

[[Page 260]]

manufacturer may accumulate additionalservice before conducting a 
retest, subject to the provisions ofparagraph (c) of this section.
    (j) A manufacturer may test engines with the test procedurespecified 
in subpart E of this part to demonstrate compliance with theexhaust 
emission standards; however, if alternate procedures were usedin 
certification pursuant to Sec. 90.120, then thosealternate procedures 
shall be used.



Sec. 90.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicabletest 
procedure specified in paragraph (a) of Sec. 90.508.The manufacturer 
shall round these results, in accordance with ASTME29-93a, to the number 
of decimal places contained in theapplicable emission standard expressed 
to one additional significantfigure. ASTM E29-93a has been incorporated 
by reference. SeeSec. 90.7.
    (b)(1) Final test results are calculated by summing the initialtest 
results derived in paragraph (a) of this section for each testengine, 
dividing by the number of tests conducted on the engine, androunding to 
the same number of decimal places contained in theapplicable standard. 
For Phase 2 engines only, this result shall beexpressed to one 
additional significant figure.
    (2) Final deteriorated test results (for Phase 2 test enginesonly) 
are calculated by applying the appropriate deteriorationfactors, from 
the certification process for the engine family, to thefinal test 
results, and rounding to the same number of decimal placescontained in 
the applicable standard.
    (c) Within five working days after completion of testing of 
allengines pursuant to a test order, the manufacturer shall submit to 
theAdministrator a report which includes the following information:
    (1) The location and description of the manufacturer's 
exhaustemission test facilities which were utilized to conduct 
testingreported pursuant to this section;
    (2) The applicable standards or compliance levels against whichthe 
engines were tested;
    (3) A description of the engine and its associated emission-related 
component selection method used;
    (4) For each test conducted;
    (i) Test engine description, including:
    (A) Configuration and engine family identification;
    (B) Year, make and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior 
totesting;
    (ii) Location where service accumulation was conducted 
anddescription of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding and final test results for all 
exhaustemission tests, whether valid or invalid, and the reason 
forinvalidation, if applicable;
    (iv) A complete description of any modification, repair,preparation, 
maintenance, and/or testing which was performed on thetest engine and 
has not been reported pursuant to any other paragraphof this subpart and 
will not be performed on all other productionengines;
    (v) Where an engine was deleted from the test sequence 
byauthorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevantto 
the determination as to whether the new engines being manufacturedby the 
manufacturer do in fact conform with the regulations withrespect to 
which the certificate of conformity was issued; and
    (5) The following statement and endorsement:
    This report is submitted pursuant to sections 213 and 208 of 
theClean Air Act. This Selective Enforcement Audit was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
part90 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control proceduresfor the 
engine family tested have been made between receipt of thetest order and 
conclusion of the audit. All data and informationreported herein is, to 
the best of (Company Name) knowledge, true andaccurate. I am aware of

[[Page 261]]

the penalties associated with violationsof the Clean Air Act and the 
regulations thereunder. (AuthorizedCompany Representative.)

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999]



Sec. 90.510  Compliance with acceptable quality level and passing and failingcriteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) For Phase I engines, a failed engine is an engine whose 
finaltest results pursuant to Sec. 90.509(b), for one or more ofthe 
applicable pollutants exceed the emission standard. For Phase 2engines, 
a failed engine is an engine whose final deteriorated testresults 
pursuant to Sec. 90.509(b), for one or more of theapplicable pollutants 
exceed the emission standard (FEL, ifapplicable).
    (c) The manufacturer shall test engines comprising the test 
sampleuntil a pass decision is reached for all pollutants or a fail 
decisionis reached for one pollutant. A pass decision is reached when 
thecumulative number of failed engines, as defined in paragraph (b) 
ofthis section, for each pollutant is less than or equal to the 
passdecision number, as defined in paragraph (d) of this 
section,appropriate to the cumulative number of engines tested. A 
faildecision is reached when the cumulative number of failed engines 
forone or more pollutants is greater than or equal to the fail 
decisionnumber, as defined in paragraph (d) of this section, appropriate 
tothe cumulative number of engines tested.
    (d) The pass and fail decision numbers associated with thecumulative 
number of engines tested are determined by using the tablesin Appendix A 
to this subpart, ``Sampling Plans for SelectiveEnforcement Auditing of 
Small Nonroad Engines,'' appropriate tothe projected sales as made by 
the manufacturer in its report to EPAunder Sec. 90.505(c)(1). In the 
tables in Appendix A to thissubpart, sampling plan ``stage'' refers to 
the cumulativenumber of engines tested. Once a pass or fail decision has 
been madefor a particular pollutant, the number of engines with final 
testresults exceeding the emission standard for that pollutant shall 
notbe considered any further for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is madeon 
the last engine test required to make a decision under paragraph(c) of 
this section.
    (f) The Administrator may terminate testing earlier than requiredin 
paragraph (c) of this section.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar.30, 1999]



Sec. 90.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to 
anyengine failing pursuant to Sec. 90.510(b) effective from thetime 
that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformityfor a 
family which does not pass an SEA, pursuant to paragraphSec. 90.510(c), 
based on the first test or all testsconducted on each engine. This 
suspension will not occur before tendays after failure of the audit.
    (c) If the results of testing pursuant to these regulationsindicate 
that engines of a particular family produced at one plant ofa 
manufacturer do not conform to the regulations with respect to whichthe 
certificate of conformity was issued, the Administrator maysuspend the 
certificate of conformity with respect to that family forengines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in 
theapplication may be covered by a certificate of conformity, 
theAdministrator may suspend such certificate in whole or in part if 
theAdministrator finds any one of the following infractions to 
besubstantial:
    (1) The manufacturer refuses to comply with the provisions of atest 
order issued by the Administrator under Sec. 90.503.
    (2) The manufacturer refuses to comply with any of therequirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information inany 
report or information provided to the Administrator under thissubpart.

[[Page 262]]

    (4) The manufacturer renders inaccurate any test datasubmitted under 
this subpart.
    (5) An EPA enforcement officer or EPA authorized representative 
isdenied the opportunity to conduct activities related to entry 
andaccess as authorized in this subpart and a warrant or court order 
ispresented to the manufacturer or the party in charge of a facility 
inquestion.
    (6) An EPA enforcement officer or EPA authorized representative 
isunable to conduct activities related to entry and access as 
authorizedin Sec. 90.506 because a manufacturer has located a 
facilityin a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator shall notify the manufacturer in writing ofany 
suspension or revocation of a certificate of conformity in wholeor in 
part, except that the certificate is immediately suspended withrespect 
to any failed engines as provided for in paragraph (a) of thissection.
    (f) The Administrator may revoke a certificate of conformity for 
afamily when the certificate has been suspended pursuant to paragraph(b) 
or (c) of this section if the proposed remedy for thenonconformity, as 
reported by the manufacturer to the Administrator,is one requiring a 
design change or changes to the engine and/oremission control system as 
described in the application forcertification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, 
asprovided for in paragraph (a) of this section, the manufacturer 
shalltake the following actions:
    (1) Before the certificate is reinstated for that failed engine;
    (i) Remedy the nonconformity; and
    (ii) Demonstrate that the engine conforms to applicable standardsby 
retesting the engine in accordance with these regulations.
    (2) Submit a written report to the Administrator, after 
successfulcompletion of testing on the failed engine, which contains 
adescription of the remedy and test results for each engine in 
additionto other information that may be required by this regulation.
    (h) Once a certificate for a failed family has been 
suspendedpursuant to paragraph (b) or (c) of this section, the 
manufacturershall take the following actions before the Administrator 
willconsider reinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the engines, describes theproposed 
remedy, including a description of any proposed qualitycontrol and/or 
quality assurance measures to be taken by themanufacturer to prevent 
future occurrences of the problem, and statesthe date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theseregulations 
by testing engines selected from normal production runs ofthat engine 
family, at the plant(s), port facility(ies) or associatedstorage 
facility(ies) specified by the Administrator, in accordancewith the 
conditions specified in the initial test order. If themanufacturer 
elects to continue testing individual engines aftersuspension of a 
certificate, the certificate is reinstated for anengine actually 
determined to be in conformance with the applicablestandards through 
testing in accordance with the applicable testprocedures, provided that 
the Administrator has not revoked thecertificate pursuant to paragraph 
(f) of this section.
    (i) Once the certificate has been revoked for a family and 
themanufacturer desires to continue introduction into commerce of 
amodified version of that family, the following actions shall be 
takenbefore the Administrator may consider issuing a certificate for 
thatmodified family:
    (1) If the Administrator determines that the proposed change(s) 
inengine design may have an effect on emission performancedeterioration, 
the Administrator shall notify the manufacturer, withinfive working days 
after receipt of the report in paragraph (f) of thissection, whether 
subsequent testing under this subpart will besufficient to evaluate the 
proposed change or changes or whetheradditional testing will be 
required; and

[[Page 263]]

    (2) After implementing the change or changes intended toremedy the 
nonconformity, the manufacturer shall demonstrate that themodified 
engine family does in fact conform with these regulations bytesting 
engines selected from normal production runs of that modifiedengine 
family in accordance with the conditions specified in theinitial test 
order. If the subsequent audit results in passing of theaudit, the 
Administrator shall reissue the certificate or issue a newcertificate, 
as the case may be, to include that family, provided thatthe 
manufacturer has satisfied the testing requirements of paragraph(i)(1) 
of this section. If the subsequent audit is failed, therevocation 
remains in effect. Any design change approvals under thissubpart are 
limited to the family affected by the test order.
    (j) At any time subsequent to an initial suspension of acertificate 
of conformity for a test engine pursuant to paragraph (a)of this 
section, but not later than 15 days or such other period asmay be 
allowed by the Administrator after notification of theAdministrator's 
decision to suspend or revoke a certificate ofconformity in whole or in 
part pursuant to paragraphs (b), (c), or (f)of this section, a 
manufacturer may request a hearing as to whetherthe tests have been 
properly conducted or any sampling methods havebeen properly applied.
    (k) Any suspension of a certificate of conformity under paragraph(d) 
of this section shall:
    (1) Be made only after the manufacturer concerned has been offeredan 
opportunity for a hearing conducted in accordance withSec. Sec. 90.512, 
90.513, and 90.514 and
    (2) Not apply to engines no longer in the possession of 
themanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section and prior to the commencement of 
ahearing under Sec. 90.512, if the manufacturer demonstratesto the 
Administrator's satisfaction that the decision to suspend,revoke, or 
void the certificate was based on erroneous information,the 
Administrator shall reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engineswhen 
conducting an audit of a family subsequent to a failure of an SEAand 
while reauditing the failed family it may request that theAdministrator 
conditionally reinstate the certificate for that family.The 
Administrator may reinstate the certificate subject to thecondition that 
the manufacturer commits to recall all engines of thatfamily produced 
from the time the certificate is conditionallyreinstated if the family 
fails the subsequent audit at the level ofthe standard and to remedy any 
nonconformity at no expense to theowner.



Sec. 90.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator'sdecision 
to suspend, revoke or void a certificate or disputes thebasis for an 
automatic suspension pursuant toSec. 90.511(a), the manufacturer may 
request a publichearing.
    (b) The manufacturer's request shall be filed with theAdministrator 
not later than 15 days after the Administrator'snotification of his or 
her decision to suspend, revoke or void, unlessotherwise specified by 
the Administrator. The manufacturer shallsimultaneously serve two copies 
of this request upon the Director ofthe Engine Programs and Compliance 
Division and file two copies withthe Hearing Clerk of the Agency. 
Failure of the manufacturer torequest a hearing within the time provided 
constitutes a waiver of theright to a hearing. Subsequent to the 
expiration of the period forrequesting a hearing as of right, the 
Administrator may, in his or herdiscretion and for good cause shown, 
grant the manufacturer a hearingto contest the suspension, revocation or 
voiding.
    (c) A manufacturer shall include in the request for a publichearing:
    (1) A statement as to which engine configuration(s) within afamily 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by 
themanufacturer at the hearing, except that in the case of the 
hearingrequested under Sec. 90.511(j), the hearing is restricted tothe 
following issues:

[[Page 264]]

    (i) Whether tests have been properly conducted (specifically,whether 
the tests were conducted in accordance with applicableregulations under 
this part and whether test equipment was properlycalibrated and 
functioning);
    (ii) Whether sampling plans have been properly applied(specifically, 
whether sampling procedures specified in Appendix A ofthis subpart were 
followed and whether there exists a basis fordistinguishing engines 
produced at plants other than the one fromwhich engines were selected 
for testing which would invalidate theAdministrator's decision under 
Sec. 90.511(c));
    (3) A statement specifying reasons why the manufacturer believesit 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the 
manufacturer'sposition on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15245, Mar.30, 1999]



Sec. 90.513  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law 
Judgeappointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 
asamended).
    (b) The Judicial Officer shall be an officer or employee of 
theAgency appointed as a Judicial Officer by the Administrator, 
pursuantto this section, who shall meet the qualifications and 
performfunctions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent 
ortemporary employee of the Agency who performs other duties for 
theAgency. The Judicial Officer shall not be employed by the Office 
ofEnforcement or have any connection with the preparation orpresentation 
of evidence for a hearing held pursuant to this subpart.The Judicial 
Officer shall be a graduate of an accredited law schooland a member in 
good standing of a recognized Bar Association of anystate or the 
District of Columbia.
    (2) Functions. The Administrator may consult with theJudicial 
Officer or delegate all or part of the Administrator'sauthority to act 
in a given case under this section to a JudicialOfficer, provided that 
this delegation does not preclude the JudicialOfficer from referring any 
motion or case to the Administrator whenthe Judicial Officer determines 
such referral to be appropriate.
    (c) For the purposes of this section, one or more JudicialOfficers 
may be designated. As work requires, a Judicial Officer maybe designated 
to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requestedunder 
Sec. 90.511(j), when it clearly appears from the dataand other 
information contained in the request for a hearing that nogenuine and 
substantial question of fact exists with respect to theissues specified 
in Sec. 90.512(c)(2), the Administratorshall enter an order denying the 
request for a hearing and reaffirmingthe original decision to suspend or 
revoke a certificate ofconformity, if this decision has been made 
pursuant toSec. 90.511(e) at any time prior to the decision to deny 
therequest for a hearing.
    (2) In the case of a hearing requested under Sec. 90.512to 
challenge a proposed suspension of a certificate of conformity forthe 
reasons specified in Sec. 90.511(d), when it clearlyappears from the 
data and other information contained in the requestfor the hearing that 
no genuine and substantial question of factexists with respect to the 
issue of whether the refusal to comply withthe provisions of a test 
order or any other requirement ofSec. 90.503 was caused by conditions 
and circumstancesoutside the control of the manufacturer, the 
Administrator shall enteran order denying the request for a hearing and 
suspending thecertificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of thissection 
has the force and effect of a final decision of theAdministrator, as 
issued pursuant to Sec. 90.515.
    (4) If the Administrator determines that a genuine and 
substantialquestion of fact does exist with respect to any of the issues 
referredto in paragraphs (d)(1) and (d)(2) of this section, the 
Administratorshall grant the request for a hearing and publish a notice

[[Page 265]]

ofpublic hearing in the Federal Register or by such other means asthe 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies ofall 
documents or papers required or permitted to be filed pursuant tothis 
section and Sec. 90.512(c) must be filed with theHearing Clerk of the 
Agency. Filing is considered timely if mailed, asdetermined by the 
postmark, to the Hearing Clerk within the timeallowed by this section 
and Sec. 90.512(b). If filing is tobe accomplished by mailing, the 
documents must be sent to the addressset forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented 
inwritten form. Copies of written testimony will be served upon 
allparties as soon as practicable prior to the start of the hearing. 
Acertificate of service will be provided on or accompany each documentor 
paper filed with the Hearing Clerk. Documents to be served upon 
theDirector of the Manufacturers Operations Division must be sent 
byregistered mail to: Director, Manufacturers Operations Division, 
U.S.Environmental Protection Agency, 6405-J, 401 M St., SW.,Washington, 
DC 20460. Service by registered mail is complete uponmailing.
    (f) Computation of time. (1) In computing any period of 
timeprescribed or allowed by this section, except as otherwise 
provided,the day of the act or event from which the designated period of 
timebegins to run is not included. Saturdays, Sundays, and federal 
legalholidays are included in computing the period allowed for the 
filingof any document or paper, except that when the period expires on 
aSaturday, Sunday, or federal legal holiday, the period is extended 
toinclude the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted to do an act is computed from the time of service, exceptthat 
when service is accomplished by mail, three days will be added tothe 
prescribed period.
    (g) Consolidation. The Administrator or the PresidingOfficer in his 
or her discretion may consolidate two or moreproceedings to be held 
under this section for the purpose of resolvingone or more issues 
whenever it appears that consolidation willexpedite or simplify 
consideration of these issues. Consolidation doesnot affect the right of 
any party to raise issues that could have beenraised if consolidation 
had not occurred.
    (h) Hearing date. To the extent possible, hearings underSec. 90.512 
will be scheduled to commence within 14 days ofreceipt of the 
application in Sec. 90.512.



Sec. 90.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84 (i) to(s) apply for 
hearings requested pursuant to Sec. 90.512,suspension, revocation, or 
voiding of a certificate of conformity.



Sec. 90.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84 (t) to(aa) apply for 
appeals filed with respect to hearings held pursuant toSec. 90.514.



Sec. 90.516  Treatment of confidential information.

    The provisions for treatment of confidential information describedin 
Sec. 90.4 apply to this subpart.



  Sec. Appendix A to Subpart F of Part90--Sampling Plans for Selective 

              Enforcement Auditing of SmallNonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
                                                                  Code
                  Annualengine family sales                      letter
------------------------------------------------------------------------
50-99........................................................         A
100-299......................................................         B
300-499......................................................          C
500 or greater...............................................         D
------------------------------------------------------------------------


                Table 2--Sample Plan for Code Letter``A''
                      [Sample inspection criteria]
------------------------------------------------------------------------
                                               Fail          Pass   Fail
               Stage                 PassNo.   No.   Stage   No.    No.1
------------------------------------------------------------------------
 1.................................   (\1\)   (\2\)     16      6     11
 2.................................   (\1\)   (\2\)     17      7     12
 3.................................   (\1\)   (\2\)     18      7     12
 4.................................       0   (\2\)     19      8     13
 5.................................       0   (\2\)     20      8     13
 6.................................       1       6     21      9     14
 7.................................       1       7     22     10     14
 8.................................       2       7     23     10     15
 9.................................       2       8     24     11     15
10.................................       3       8     25     11     16
11.................................       3       8     26     12     16
12.................................       4       9     27     12     17

[[Page 266]]

 
13.................................       5      10     28     13     17
14.................................       5      10     29     14     17
15.................................       6      11     30     16     17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 3--Sampling Plan for Code Letter``B''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                                   Fail
                         Stage                          PassNo.    No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        1        6
 7....................................................        1        7
 8....................................................        2        7
 9....................................................        2        8
10....................................................        3        8
11....................................................        3        9
12....................................................        4        9
13....................................................        4       10
14....................................................        5       10
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        8       13
10....................................................        8       14
21....................................................        9       14
22....................................................        9       15
23....................................................       10       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       18
30....................................................       13       19
31....................................................       14       19
32....................................................       14       20
33....................................................       15       20
34....................................................       16       21
35....................................................       16       21
36....................................................       17       22
37....................................................       17       22
38....................................................       18       22
39....................................................       18       22
40....................................................       21       22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 4--Sampling Plan for Code Letter``C''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                                   Fail
                         Stage                          PassNo.    No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        0        6
 7....................................................        1        7
 8....................................................        2        7
 9....................................................        2        8
10....................................................        3        9
11....................................................        3        9
12....................................................        4       10
13....................................................        4       10
14....................................................        5       11
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        7       13
20....................................................        8       14
21....................................................        8       14
22....................................................        9       15
23....................................................       10       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       18
30....................................................       13       19
31....................................................       14       19
32....................................................       14       20
33....................................................       15       20
34....................................................       15       21
35....................................................       16       21
36....................................................       16       22
37....................................................       17       22
38....................................................       18       23
39....................................................       18       23
40....................................................       19       24
41....................................................       19       24
42....................................................       20       25
43....................................................       20       25
44....................................................       21       26
45....................................................       21       27
46....................................................       22       27
47....................................................       22       27
48....................................................       23       27
49....................................................       23       27
50....................................................       26       27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 5--Sampling Plan for Code Letter``D''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                                   Fail
                         Stage                          PassNo.    No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        0        6
 7....................................................        1        7
 8....................................................        2        8
 9....................................................        2        8
10....................................................        3        9
11....................................................        3        9

[[Page 267]]

 
12....................................................        4       10
13....................................................        4       10
14....................................................        5       11
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        7       13
20....................................................        8       14
21....................................................        8       14
22....................................................        9       15
23....................................................        9       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       19
30....................................................       13       19
31....................................................       14       20
32....................................................       14       20
33....................................................       15       21
34....................................................       15       21
35....................................................       16       22
36....................................................       16       22
37....................................................       17       23
38....................................................       17       23
39....................................................       18       24
40....................................................       18       24
41....................................................       19       25
42....................................................       19       26
43....................................................       20       26
44....................................................       21       27
45....................................................       21       27
46....................................................       22       28
47....................................................       22       28
48....................................................       23       29
49....................................................       23       29
50....................................................       24       30
51....................................................       24       30
52....................................................       25       31
53....................................................       25       31
54....................................................       26       32
55....................................................       26       32
56....................................................       27       33
57....................................................       27       33
58....................................................       28       33
59....................................................       28       33
60....................................................       32       33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.



             Subpart G_Importation of Nonconforming Engines



Sec. 90.601  Applicability.

    (a) Except where otherwise indicated, this subpart is applicableto 
engines and vehicles which are offered for importation or importedinto 
the United States and for which the Administrator has 
promulgatedregulations under subpart B of this part prescribing 
emissionstandards, but which are not covered by certificates of 
conformityissued under section 213 and section 206(a) of the Clean Air 
Act (thatis, which are nonconforming engines as defined below) and 
undersubpart B of this part at the time of importation or 
conditionalimportation, as applicable. Compliance with regulations under 
thissubpart shall not relieve any person or entity from compliance 
withother applicable provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importationof 
small SI engines into the Customs territory of the United States,as 
defined in 19 U.S.C. 1202, are set forth in U.S. Customs 
Serviceregulations.



Sec. 90.602  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by theAdministrator 
under section 213 and section 206(a) of the Act.
    Nonconforming engine. An engine which is not covered by acertificate 
of conformity prior to final or conditional admission (orfor which such 
coverage has not been adequately demonstrated to EPA).
    Original engine manufacturer (OEM). The entity whichoriginally 
manufactured the engine.
    Original production (OP) year. The calendar year in whichthe engine 
was originally produced by the OEM.
    Original production (OP) years old. The age of an engine 
asdetermined by subtracting the original production year of the 
enginefrom the calendar year of importation.
    Production changes. Those changes in the engineconfiguration, 
equipment or calibration which are made by an OEM inthe course of engine 
production and required to be reported underSec. 90.123.
    United States. United States includes the Customs territoryof the 
United States as defined in 19 U.S.C. 1202, and the VirginIslands, Guam, 
American Samoa and the Commonwealth of the NorthernMariana Islands.

[[Page 268]]



Sec. 90.603  [Reserved]



Sec. 90.604  General requirements.

    (a) A nonconforming engine offered for importation into the 
UnitedStates may only be imported for purposes other than resale 
underSec. 90.611, or under the provisions ofSec. 90.612, provided that 
an exemption or exclusion isgranted by the Administrator.
    (b) Final admission shall not be granted unless:
    (1) The engine is imported for purposes other than resale underSec. 
90.611; or
    (2) The engine is exempted or excluded underSec. 90.612.
    (c) An engine offered for importation may be admitted into theUnited 
States. In order to obtain admission, the importer must submitto the 
Administrator a written request for approval containing thefollowing:
    (1) Identification of the importer and the importer's 
address,telephone number, and taxpayer identification number;
    (2) Identification of the engine owner, the owner's 
address,telephone number, and taxpayer identification number;
    (3) Identification of the engine including make, 
model,identification number, and original production year;
    (4) Information indicating under what provision of theseregulations 
the engine is to be imported;
    (5) Identification of the place where the subject engine is to 
bestored until EPA approval of the importer's application to 
theAdministrator for final admission;
    (6) Authorization for EPA enforcement officers to conductinspections 
or testing otherwise permitted by the Act or regulationsthereunder; and
    (7) Such other information as is deemed necessary by 
theAdministrator.



Sec. 90.605-90.610  [Reserved]



Sec. 90.611  Importation for purposes other than resale.

    (a) Any individual may import on a one-time basis three or 
fewernonconforming engines for purposes other than resale. Such 
importationby individuals is permitted without modification to the 
engines andwithout prior written approval of EPA. Importations under 
thisprovision shall be made by completing such applications as required 
bythe Administrator. Such applications shall contain:
    (1) Identification of the importer of the engine and theimporter's 
address, telephone number, and taxpayer identificationnumber;
    (2) Identification of the engine owner, the owner's 
address,telephone number, and taxpayer identification number;
    (3) The number of engines imported under Sec. 90.611 bythe 
individual;
    (4) A statement that the individual has not previously importedany 
engines under Sec. 90.611;
    (5) A statement that the individual is not importing the enginesfor 
the purpose of resale;
    (6) For each engine imported, identification of the engineincluding 
make, model, identification number, and original productionyear;
    (7) Information indicating under what provision of theseregulations 
the engine is to be imported;
    (8) Authorization for EPA enforcement officers to conductinspections 
permitted by the Act or regulations thereunder;
    (9) Such other information as is deemed necessary by 
theAdministrator.
    (b) EPA will not require a U.S. Customs Service bond for 
anonconforming engine which is imported under Sec. 90.611.



Sec. 90.612  Exemptions and exclusions.

    (a) Individuals shall be eligible for importing engines into 
theUnited States under the provisions of this section, unless 
otherwisespecified.
    (b) Notwithstanding other requirements of this subpart, an 
engineentitled to one of the temporary exemptions of this paragraph may 
beconditionally admitted into the United States if prior writtenapproval 
for the conditional admission is obtained from theAdministrator. 
Conditional admission is to be under U.S. CustomsService bond. The 
Administrator may request that the U.S. CustomsService require a 
specific bond amount to ensure compliance with therequirements of the 
Act and this subpart. A written request forapproval from the 
Administrator is to contain the identification

[[Page 269]]

required in Sec. 90.604(c) and information thatdemonstrates that the 
importer is entitled to the exemption.Noncompliance with provisions of 
this section may result in theforfeiture of the total amount of the bond 
or exportation of theengine. The following temporary exemptions are 
permitted by thisparagraph:
    (1) Exemption for repairs or alterations. A person mayconditionally 
import under bond a nonconforming engine solely forpurpose of repairs or 
alterations. The engine may not be operated inthe United States other 
than for the sole purpose of repair oralteration or shipment to the 
point of repair or alteration and to theport of export. It may not be 
sold or leased in the United States andis to be exported upon completion 
of the repairs or alterations.
    (2) Testing exemption. A test engine may be conditionallyimported by 
a person subject to the requirements ofSec. 90.905. A test engine may 
be operated in the UnitedStates provided that the operation is an 
integral part of the test.This exemption is limited to a period not 
exceeding one year from thedate of importation unless a request is made 
by the appropriateimporter concerning the engine in accordance withSec. 
90.905(f) for a subsequent one-year period.
    (3) Display exemptions. (i) An engine intended solely fordisplay may 
be conditionally imported subject to the requirements ofSec. 90.907.
    (ii) A display engine may be imported by any person for 
purposesrelated to a business or the public interest. Such purposes do 
notinclude collections normally inaccessible or unavailable to the 
publicon a daily basis, display of an engine at a dealership, private 
use,or other purpose that the Administrator determines is not 
appropriatefor display exemptions. A display engine may not be sold in 
the UnitedStates and may not be operated in the United States except for 
theoperation incident and necessary to the display purpose.
    (iii) A temporary display exemption will be granted for 12 
months(one year) or for the duration of the display purpose, whichever 
isshorter. Two extensions of up to 12 months (one year) each 
areavailable upon approval by the Administrator. In no 
circumstances,however, may the total period of exemption exceed 36 
months (threeyears).
    (c) Notwithstanding any other requirement of this subpart, anengine 
may be finally admitted into the United States under thisparagraph if 
prior written approval for such final admission isobtained from the 
Administrator. Conditional admission of theseengines under this subpart 
is not permitted for the purpose ofobtaining such written approval from 
the Administrator. A request forapproval is to contain the 
identification information required inSec. 90.604(c) and information 
that demonstrates that theimporter is entitled to the exemption or 
exclusion. The followingexemptions or exclusions are permitted by this 
paragraph:
    (1) National security exemption. An engine may be importedunder the 
national security exemption found at Sec. 90.908.
    (2) Hardship exemption. The Administrator may exempt on acase-by-
case basis an engine from federal emission requirements toaccommodate 
unforeseen cases of extreme hardship or extraordinarycircumstances.
    (3) Exemption for engines identical to United States 
certifiedversions. (i) A person (including businesses) is eligible 
forimporting an engine into the United States under the provisions 
ofthis paragraph. An exemption will be granted if the engine:
    (A) is owned by the importer;
    (B) is not offered for importation for the purpose of resale; and
    (C) is proven to be identical, in all material respects, to anengine 
certified by the original equipment manufacturer (OEM) for salein the 
United States or is proven to have been modified to beidentical, in all 
material respects, to an engine certified by the OEMfor sale in the 
United States according to complete writteninstructions provided by the 
OEM's United States representative, orhis/her designee.
    (ii) Proof of Conformity. (A) Documentation submittedpursuant to 
this section for the purpose of proving conformity ofindividual engines 
is to contain sufficiently organized data orevidence demonstrating that 
the engine

[[Page 270]]

identified pursuant toSec. 90.604(c) is identical, in all material 
respects, to anengine identified in an OEM's application for 
certification.
    (B) If the documentation does not contain all the 
informationrequired by this part, or is not sufficiently organized, EPA 
willnotify the importer of any areas of inadequacy, and that 
thedocumentation will not receive further consideration until 
therequired information or organization is provided.
    (C) If EPA determines that the documentation does not clearly 
orsufficiently demonstrate that an engine is eligible for 
importation,EPA will notify the importer in writing.
    (D) If EPA determines that the documentation clearly andsufficiently 
demonstrates that an engine is eligible for importation,EPA will grant 
approval for importation and notify the importer inwriting.
    (d) Foreign diplomatic and military personnel may import 
anonconforming engine without bond. At the time of admission, 
theimporter shall submit to the Administrator the written report 
requiredin Sec. 90.604(a) and a statement from the U.S. Departmentof 
State confirming qualification for this exemption. Foreign 
militarypersonnel may, in lieu of a statement from the U.S. Department 
ofState, submit to the Administrator a copy of their orders for duty 
inthe United States. The engine may not be sold in the United States 
andmust be exported if the individual's diplomatic status is no 
longerapplicable, as determined by the Department of State, or the 
foreignmilitary orders for duty in the United States are no 
longerapplicable, unless subsequently brought into conformity with 
U.S.emission requirements.
    (e) Competition exclusion. A nonconforming engine may 
beconditionally admitted by any person provided the importerdemonstrates 
to the Administrator that the engine is used to propel anonroad vehicle 
used solely for competition and obtains prior writtenapproval from the 
Administrator. A nonconforming engine importedpursuant to this paragraph 
may not be operated in the United Statesexcept for that operation 
incident and necessary for the competitionpurpose, unless subsequently 
brought into conformity with UnitedStates emission requirements in 
accordance withSec. 90.612(c)(3).
    (f) Exclusions/exemptions based on date of originalmanufacture. (1) 
Notwithstanding any other requirements of thissubpart, engines 
originally manufactured prior to model year 1997 areexcluded from the 
requirements of the Act in accordance with section213 of the Act and may 
be imported by any person.
    (2) Notwithstanding other requirements of this subpart, an enginenot 
subject to an exclusion under Sec. 90.612(f)(1) butgreater than 20 
original production (OP) years old is entitled to anexemption from the 
requirements of the Act, provided that it has notbeen modified in those 
20 OP years. At the time of admission, theimporter shall submit to the 
Administrator the written report requiredin Sec. 90.604(c).
    (g) Applications for exemptions and exclusions provided for 
inparagraphs (b), (c), and (e) of this section are to be mailed to: 
U.S.Environmental Protection Agency, Office of Mobile Sources, 
EngineCompliance Programs Group (6403-J), Washington, DC 
20460,Attention: Imports.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15245, Mar.30, 1999; 70 
FR 40450, July 13, 2005]



Sec. 90.613  Prohibited acts; penalties.

    (a) The importation of an engine which is not covered by 
acertificate of conformity other than in accordance with this subpartand 
the entry regulations of the U.S. Customs Service is prohibited.Failure 
to comply with this subpart is a violation of section 213(d)and section 
203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period 
ofconditional admission, the importer of an engine shall not:
    (1) Register, license, or operate the engine in the United States;or
    (2) Sell or offer the engine for sale.
    (c) An engine conditionally admitted pursuant toSec. 90.612(b), 
(d), or (e) and not granted final admissionwithin the period of time 
specified for such conditional admission inthe written prior approval 
obtained from EPA, or within suchadditional time as designated by the 
Administrator, is deemed to beunlawfully imported into the United

[[Page 271]]

States in violation ofsection 213(d) and section 203 of the Act, unless 
the engine has beendelivered to the U.S. Customs Service for export or 
other dispositionunder applicable Customs laws and regulations. An 
engine not sodelivered is subject to seizure by the U.S. Customs 
Service.
    (d) An importer who violates section 213(d) and section 203 of 
theAct is subject to a civil penalty under section 205 of the Act of 
notmore than $32,500 for each engine subject to the violation. 
Inaddition to the penalty provided in the Act, where applicable, 
underthe exemption provisions of Sec. 90.612(b), a person orentity who 
fails to deliver the engine to the U.S. Customs Service isliable for 
liquidated damages in the amount of the bond required byapplicable 
Customs laws and regulations. The maximum penalty valuelisted in this 
paragraph (d) is shown for calendar year 2004. Maximumpenalty limits for 
later years may be adjusted based on the ConsumerPrice Index. The 
specific regulatory provisions for changing themaximum penalties, 
published in 40 CFR part 19, reference theapplicable U.S. Code citation 
on which the prohibited action is based.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July13, 2005]



Sec. 90.614  Treatment of confidential information.

    The provisions for treatment of confidential information describedin 
Sec. 90.4 apply to this subpart.



Sec. 90.615  Importation of partially complete engines.

    The provisions of 40 CFR 1068.330 apply for importation ofpartially 
complete engines, or engines that will be modified forapplications other 
than those covered by this part 90.

[70 FR 40450, July 13, 2005]



         Subpart H_Manufacturer Production Line Testing Program

    Source: 64 FR 15245, Mar. 30, 1999, unless otherwisenoted.



Sec. 90.701  Applicability.

    (a) The requirements of this subpart are applicable to all Phase 
2nonroad handheld and nonhandheld engines families subject to 
theprovisions of subpart A of this part unless otherwise exempted in 
thissubpart.
    (b) The procedures described in this subpart are optional forsmall 
volume engine manufacturers and small volume engine families asdefined 
in this part. Small volume engine manufacturers and smallvolume engine 
families for which the manufacturer opts not to conducttesting under 
this subpart pursuant to this paragraph shall remainsubject to the 
Selective Enforcement Auditing procedures of subpart Fof this part.
    (c) Engine families for which the manufacturer opts to conduct in-
use testing pursuant to subpart M of this part are exempt from 
thissubpart, but shall remain subject to the Selective 
EnforcementAuditing procedures of subpart F of this part.

[64 FR 15245, Mar. 30, 1999, as amended at 65 FR 24313, Apr.25, 2000]



Sec. 90.702  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, injector size, engine calibration, andother parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected fromthe 
population of an engine family for emission testing.



Sec. 90.703  Production line testing by the manufacturer.

    (a) Manufacturers of small SI engines shall test production 
lineengines from each engine family according to the provisions of 
thissubpart.
    (b) Production line engines must be tested using the testprocedure 
specified in subpart E of this part except that theAdministrator may 
approve minor variations that the Administratordeems necessary to 
facilitate efficient and economical testing wherethe manufacturer 
demonstrates to the satisfaction of the Administratorthat such 
variations will not significantly impact the test results.Any adjustable

[[Page 272]]

engine parameter must be set to values orpositions that are within the 
range recommended to the ultimatepurchaser, unless otherwise specified 
by the Administrator. TheAdministrator may specify values within or 
without the rangerecommended to the ultimate purchaser.



Sec. 90.704  Maintenance of records; submission of information.

    (a) The manufacturer of any new small SI engine subject to any ofthe 
provisions of this subpart must establish, maintain, and retainthe 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used totest 
engines in accordance with Sec. 90.703. Subpart D ofthis part sets 
forth relevant equipment requirements inSec. Sec. 90.304, 90.305, 
90.306, 90.307, 90.308, 90.309,90.310 and 90.313.
    (2) Individual records. These records pertain to eachproduction line 
test conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the test 
enginewhen the test began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the production line test;
    (iv) A record and description of any adjustment, repair,preparation 
or modification performed prior to and/or subsequent toapproval by the 
Administrator pursuant to Sec. 90.707(b)(1),giving the date, associated 
time, justification, name(s) of theauthorizing personnel, and names of 
all supervisory personnelresponsible for the conduct of the repair;
    (v) If applicable, the date the engine was shipped from theassembly 
plant, associated storage facility or port facility, and thedate the 
engine was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant 
tothis subpart (except tests performed directly by EPA), including 
allindividual worksheets and/or other documentation relating to 
eachtest, or exact copies thereof, in accordance with the 
recordrequirements specified in Sec. Sec. 90.405 and 90.406; and
    (vii) A brief description of any significant events during 
testingnot otherwise described under paragraph (a)(2) of this 
section,commencing with the test engine selection process and including 
suchextraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain 
generalrecords, pursuant to paragraph (a)(1) of this section, for each 
testcell that can be used to perform emission testing under this 
subpart.
    (b) The manufacturer must retain all records required to 
bemaintained under this subpart for a period of one year aftercompletion 
of all testing required for the engine family in a modelyear. Records 
may be retained as hard copy (i.e., on paper) or reducedto microfilm, 
floppy disk, or some other method of data storage,depending upon the 
manufacturer's record retention procedure;provided, that in every case, 
all the information contained in thehard copy is retained.
    (c) The manufacturer must, upon request by the Administrator,submit 
the following information with regard to engine production:
    (1) Projected production or actual production for each 
engineconfiguration within each engine family for which certification 
hasbeen requested and/or approved;
    (2) Number of engines, by configuration and assembly plant,scheduled 
for production or actually produced.
    (d) Nothing in this section limits the Administrator's discretionto 
require a manufacturer to establish, maintain, retain or submit toEPA 
information not specified by this section and otherwise permittedby law.
    (e) All reports, submissions, notifications, and requests 
forapproval made under this subpart must be addressed to: Manager, 
EngineCompliance Programs Group (6403J), U.S. Environmental 
ProtectionAgency, Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of 
itsproduction line testing using EPA's standardized format. 
TheAdministrator may exempt manufacturers from this requirement 
uponwritten request with supporting justification.

[[Page 273]]



Sec. 90.705  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions of this subpart or other subparts ofthis 
part, one or more EPA enforcement officers may enter duringoperating 
hours and upon presentation of credentials any of thefollowing places:
    (1) Any facility, including ports of entry, where any engine to 
beintroduced into commerce or any emission-related component 
ismanufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or 
anyother subpart or any procedure or activity connected with such test 
isor was performed;
    (3) Any facility where any test engine is present; and
    (4) Any facility where any record required underSec. 90.704 or 
other document relating to this subpart orany other subpart of this part 
is located.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers are authorized to perform 
thefollowing inspection-related activities:
    (1) To inspect and monitor any aspect of engine 
manufacture,assembly, storage, testing and other procedures, and to 
inspect andmonitor the facilities in which these procedures are 
conducted;
    (2) To inspect and monitor any aspect of engine test procedures 
oractivities, including test engine selection, preparation and 
serviceaccumulation, emission test cycles, and maintenance and 
verificationof test equipment calibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine 
andany component used in the assembly thereof that is reasonably 
relatedto the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain 
reasonableassistance without cost from those in charge of a facility to 
help theofficers perform any function listed in this subpart and they 
areauthorized to request the manufacturer to make arrangements with 
thosein charge of a facility operated for the manufacturer's benefit 
tofurnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
an EPA enforcement officer's request of personnel of thefacility being 
inspected during their working hours to inform the EPAenforcement 
officer of how the facility operates and to answer theofficer's 
questions; and the performance on request of emission testson any engine 
which is being, has been, or will be used for productionline or other 
testing.
    (2) By written request, signed by the Assistant Administrator forAir 
and Radiation, and served on the manufacturer, a manufacturer maybe 
compelled to cause the personal appearance of any employee at sucha 
facility before an EPA enforcement officer. Any such employee whohas 
been instructed by the manufacturer to appear will be entitled tobe 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant 
orcourt order authorizing the EPA enforcement officers to conduct 
theactivities authorized in this section, as appropriate, to execute 
thefunctions specified in this section. EPA enforcement officers 
mayproceed ex parte to obtain a warrant or court order whether ornot the 
EPA enforcement officers first attempted to seek permissionfrom the 
manufacturer or the party in charge of the facility(ies) inquestion to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) 
whopresents a warrant or court order to conduct the activities 
authorizedin this section as described in the warrant or court order. 
Themanufacturer must also cause those in charge of its facility or 
afacility operated for its benefit to permit entry and access 
asauthorized in this section pursuant to a warrant or court orderwhether 
or not the manufacturer controls the facility. In the absenceof a 
warrant or court order, an EPA enforcement officer(s) may conductthe 
activities authorized in this section only upon the consent of

[[Page 274]]

the manufacturer or the party in charge of the facility(ies) inquestion.
    (f) It is not a violation of this part or the Clean Air Act forany 
person to refuse to permit an EPA enforcement officer(s) toconduct the 
activities authorized in this section if the officer(s)appears without a 
warrant or court order.
    (g) A manufacturer is responsible for locating its foreign 
testingand manufacturing facilities in jurisdictions where local law 
does notprohibit an EPA enforcement officer(s) from conducting the entry 
andaccess activities specified in this section. EPA will not attempt 
tomake any inspections which it has been informed local foreign 
lawprohibits.



Sec. 90.706  Engine sample selection.

    (a) At the start of each model year, the small SI enginemanufacturer 
will begin to randomly select engines from each enginefamily for 
production line testing at a rate of one percent of theprojected 
production of that family. Each engine will be selected fromthe end of 
the assembly line.
    (1) For newly certified engine families: After two enginesare 
tested, the manufacturer will calculate the required sample sizefor the 
model year for each pollutant(HC+NOX(NMHC+NOX) and 
CO) according to theSample Size Equation in paragraph (b) of this 
section.
    (2) For carry-over engine families: After one engine istested, the 
manufacturer will combine the test with the last testresult from the 
previous model year and then calculate the requiredsample size for the 
model year for each pollutant according to theSample Size Equation in 
paragraph (b) of this section.
    (b)(1) Manufacturers will calculate the required sample size forthe 
model year for each pollutant for each engine family using theSample 
Size Equation in this paragraph. N is calculated for eachpollutant from 
each test result. The higher of the two values for thenumber N indicates 
the number of tests required for the model year foran engine family. N 
is recalculated for each pollutant after eachtest. Test results used to 
calculate the variables in the followingSample Size Equation must be 
final deteriorated test results asspecified in Sec. 90.709(c).
[GRAPHIC] [TIFF OMITTED] TR13JY05.006

Where:

N = required sample size for the model year.
95 = 95% confidence coefficient. It is dependent onthe actual 
number of tests completed, n, as specified in the table inparagraph 
(b)(2) of this section. It defines one-tail, 95% confidenceintervals.
[sigma] = actual test sample standard deviation calculated fromthe 
following equation:
[GRAPHIC] [TIFF OMITTED] TR30MR99.002

xi = emission test result for an individual engine.
x = mean of emission test results of the actual sample.
FEL = Family Emission Limit or standard if no FEL.
n = The actual number of tests completed in an engine family.

    (2) The following table specifies the Actual Number of Tests (n)& 1-
tail Confidence Coefficients (t95):

------------------------------------------------------------------------
                  n                    t95     n     t95     n      t95
------------------------------------------------------------------------
2...................................   6.31     12   1.80     22    1.72
3...................................   2.92     13   1.78     23    1.72
4...................................   2.35     14   1.77     24    1.71
5...................................   2.13     15   1.76     25    1.71
6...................................   2.02     16   1.75     26    1.71
7...................................   1.94     17   1.75     27    1.71
8...................................   1.90     18   1.74     28    1.70
9...................................   1.86     19   1.73     29    1.70
10..................................   1.83     20   1.73     30    1.70
11..................................   1.81     21   1.72  [infi   1.645
                                                              n]
------------------------------------------------------------------------


[[Page 275]]

    (3) A manufacturer must distribute the testing of theremaining 
number of engines needed to meet the required sample size N,evenly 
throughout the remainder of the model year.
    (4) After each new test, the required sample size, N, isrecalculated 
using updated sample means, sample standard deviationsand the 
appropriate 95% confidence coefficient.
    (5) A manufacturer must continue testing and updating each 
enginefamily's sample size calculations according to paragraphs 
(b)(1)through (b)(4) of this section until a decision is made to 
stoptesting as described in paragraph (b)(6) of this section or 
anoncompliance decision is made pursuant to Sec. 90.710(b).
    (6) If, at any time throughout the model year, the 
calculatedrequired sample size, N, for an engine family is less than or 
equal tothe actual sample size, n, and the sample mean, x, for HC 
+NOX (NMHC+NOX) and CO is less than or equal tothe 
FEL or standard if no FEL, the manufacturer may stop testing thatengine 
family.
    (7) If, at any time throughout the model year, the sample mean, 
x,for HC + NOX (NMHC+NOX) or CO is greater thanthe 
FEL or standard if no FEL, the manufacturer must continue testingthat 
engine family at the appropriate maximum sampling rate.
    (8) The maximum required sample size for an engine family(regardless 
of the required sample size, N, as calculated in paragraph(b)(1) of this 
section) is the lesser of thirty tests per model yearor one percent of 
projected annual production for that engine familyfor that model year.
    (9) Manufacturers may elect to test additional engines. 
Additionalengines, whether tested in accordance with the testing 
proceduresspecified in Sec. 90.707 or not, may not be included in 
theSample Size and Cumulative Sum equation calculations as defined 
inparagraph (b)(1) of this section and Sec. 90.708(a),respectively. 
However, such additional test results may be used asappropriate to 
``bracket'' or define the boundaries of theproduction duration of any 
emission nonconformity determined underthis subpart. Such additional 
test data must be identified andprovided to EPA with the submittal of 
the official CumSum results.
    (c) The manufacturer must produce and assemble the test enginesusing 
its normal production and assembly process for engines to bedistributed 
into commerce.
    (d) No quality control, testing, or assembly procedures shall beused 
on any test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
unlessthe Administrator approves the modification in production or 
assemblyprocedures in advance.

[64 FR 15245, Mar. 30, 1999; 64 FR 34313, June 25, 1999; 64 FR35256, 
June 30, 1999; 64 FR 36423, July 6, 1999; 70 FR 40450, July 13,2005]



Sec. 90.707  Test procedures.

    (a)(1) For small SI engines subject to the provisions of 
thissubpart, the prescribed test procedures are specified in subpart E 
ofthis part.
    (2) The Administrator may, on the basis of a written applicationby a 
manufacturer, prescribe test procedures other than thosespecified in 
paragraph (a)(1) of this section for any small SI enginethe 
Administrator determines is not susceptible to satisfactorytesting using 
procedures specified in paragraph (a)(1) of thissection.
    (b)(1) The manufacturer may not adjust, repair, prepare, or 
modifyany test engine and may not perform any emission test on any 
testengine unless this adjustment, repair, preparation, modificationand/
or test is documented in the manufacturer's engine assembly 
andinspection procedures and is actually performed by the manufacturer 
onevery production line engine or unless this adjustment, 
repair,preparation, modification and/or test is required or permitted 
underthis subpart or is approved in advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification, Production Line Testing and 
SelectiveEnforcement Audit

[[Page 276]]

testing, to any setting within the physicallyadjustable range of that 
parameter, as determined by theAdministrator, prior to the performance 
of any test. However, if theidle speed parameter is one which the 
Administrator has determined tobe subject to adjustment, the 
Administrator may not adjust it orrequire that it be adjusted to any 
setting which causes a lower engineidle speed than would have been 
possible within the physicallyadjustable range of the idle speed 
parameter if the manufacturer hadaccumulated 12 hours of service on the 
engine under paragraph (c) ofthis section, all other parameters being 
identically adjusted for thepurpose of the comparison. The manufacturer 
may be requested to supplyinformation necessary to establish an 
alternate minimum idle speed.The Administrator, in making or specifying 
these adjustments, mayconsider the effect of the deviation from the 
manufacturer'srecommended setting on emission performance 
characteristics as well asthe likelihood that similar settings will 
occur on in-use engines. Indetermining likelihood, the Administrator may 
consider factors suchas, but not limited to, the effect of the 
adjustment on engineperformance characteristics and information from 
similar in-useengines.
    (c) Service accumulation. (1) Unless otherwise approved bythe 
Administrator, prior to performing exhaust emission productionline 
testing, the manufacturer may accumulate up to 12 hours ofservice on 
each test engine. For catalyst-equipped engines, themanufacturer must 
accumulate a number of hours equal to the number ofhours accumulated to 
represent stabilized emissions on the engine usedto obtain 
certification.
    (2) Service accumulation must be performed in a manner using 
goodengineering judgment to obtain emission results representative 
ofproduction line engines.
    (d) Unless otherwise approved by the Administrator, themanufacturer 
may not perform any maintenance on test engines afterselection for 
testing.
    (e) If an engine is shipped to a remote facility for productionline 
testing, and an adjustment or repair is necessary because ofshipment, 
the engine manufacturer must perform the necessaryadjustment or repair 
only after the initial test of the engine, exceptin cases where the 
Administrator has determined that the test would beimpossible or unsafe 
to perform or would permanently damage theengine. Engine manufacturers 
must report to the Administrator, in thequarterly report required by 
Sec. 90.709(e), all adjustmentsor repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or 
anemission test because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the testprocedure 
specified in subpart E of this part to demonstratecompliance with the 
applicable FEL (or standard where there is noFEL). If alternate or 
special test procedures pursuant to regulationsat Sec. 90.120 are used 
in certification, then thosealternate procedures must be used in 
production line testing.
    (h) Retesting. (1) If an engine manufacturer reasonablydetermines 
that an emission test of an engine is invalid because of aprocedural 
error, test equipment problem, or engine performanceproblem that causes 
the engine to be unable to safely perform a validtest, the engine may be 
retested. A test is not invalid simply becausethe emission results are 
high relative to other engines of the family.Emission results from all 
tests must be reported to EPA. The enginemanufacturer must also include 
a detailed explanation of the reasonsfor invalidating any test in the 
quarterly report required inSec. 90.709(e). If a test is invalidated 
because of anengine performance problem, the manufacturer must document 
in detailthe nature of the problem and the repairs performed in order to 
usethe after-repair test results for the original test results.
    (2) Routine retests may be conducted if the manufacturer conductsthe 
same number of tests on all engines in the family. The results ofthese 
tests must be averaged according to procedures ofSec. 90.709.

[[Page 277]]



Sec. 90.708  Cumulative Sum (CumSum) procedure.

    (a) (1) Manufacturers must construct separate CumSum Equations 
foreach regulated pollutant (HC+NOX (NMHC+NOX)and 
CO) for each engine family. Test results used to calculate thevariables 
in the CumSum Equations must be final deteriorated testresults as 
defined in Sec. 90.709(c). The CumSum Equation isconstructed as 
follows:

Ci=max[0 0R(Ci-1+Xi-(FEL+F))]

Where:

Ci=The current CumSum statistic.
Ci-1=The previous CumSum statistic. Priorto any 
testing, the CumSum statistic=0 (i.e. C0=0).
Xi=The current emission test result for an individualengine.
FEL=Family Emission Limit (the standard if no FEL).
F=.25x[sigma].

    (2) After each test pursuant to paragraph (a)(1) of this 
section,Ci is compared to the action limit, H, the quantity 
whichthe CumSum statistic must exceed, in two consecutive tests, before 
theengine family may be determined to be in noncompliance for a 
regulatedpollutant for purposes of Sec. 90.710.

Where:

H=The Action Limit. It is 5.0x[sigma], and is a functionof the standard 
deviation, [sigma].
[sigma]=is the sample standard deviation and is recalculatedafter each 
test.

    (b) After each engine is tested, the CumSum statistic shall 
bepromptly updated according to the CumSum Equation in paragraph (a) 
ofthis section.
    (c)(1) If, at any time during the model year, a manufactureramends 
the application for certification for an engine family asspecified in 
Sec. 90.122(a) by performing an engine familymodification (i.e. a 
change such as a running change involving aphysical modification to an 
engine, a change in specification orsetting, the addition of a new 
configuration, or the use of adifferent deterioration factor) with no 
changes to the FEL (whereapplicable), all previous sample size and 
CumSum statisticcalculations for the model year will remain unchanged.
    (2) If, at any time during the model year, a manufacturer amendsthe 
application for certification for an engine family as specified inSec. 
90.122 (a) by modifying its FEL (where applicable) forfuture production, 
as a result of an engine family modification, themanufacturer must 
continue its calculations by inserting the new FELinto the sample size 
equation as specified in Sec. 90.706(b)(1) and into the CumSum equation 
in paragraph (a) of this section. Allprevious calculations remain 
unchanged. If the sample size calculationindicates that additional tests 
are required, then those tests must beperformed. CumSum statistic 
calculations must not indicate that thefamily has exceeded the action 
limit for two consecutive tests. Whereapplicable, the manufacturer's 
final credit report as required bySec. 90.210 must break out the 
credits that result from eachFEL and corresponding CumSum analysis for 
the set of engines built toeach FEL.
    (3) If, at any time during the model year, a manufacturer amendsthe 
application for certification for an engine family as specified inSec. 
90.122 (a) (or for an affected part of the year'sproduction in cases 
where there were one or more mid-year enginefamily modifications), by 
modifying its FEL (where applicable) forpast and/or future production, 
without performing an enginemodification, all previous sample size and 
CumSum statisticcalculations for the model year must be recalculated 
using the newFEL. If the sample size calculation indicates that 
additional testsare required, then those tests must be performed. The 
CumSum statisticrecalculation must not indicate that the family has 
exceeded theaction limit for two consecutive tests. Where applicable, 
themanufacturer's final credit report as required bySec. 90.210 must 
break out the credits that result from eachFEL and corresponding CumSum 
analysis for the set of engines built toeach FEL.



Sec. 90.709  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicabletest 
procedure specified in Sec. 90.707 (a). Themanufacturer rounds these 
results to the number of decimal placescontained in the applicable 
emission standard expressed to oneadditional significant figure.

[[Page 278]]

    (b) Final test results are calculated by summing the initialtest 
results derived in paragraph (a) of this section for each testengine, 
dividing by the number of tests conducted on the engine, androunding to 
the same number of decimal places contained in theapplicable standard 
expressed to one additional significant figure.
    (c) The final deteriorated test results for each test engine 
arecalculated by applying the appropriate deterioration factors, 
derivedin the certification process for the engine to the final test 
results,and rounding to the same number of decimal places contained in 
theapplicable standard.
    (d) If, at any time during the model year, the CumSum 
statisticexceeds the applicable action limit, H, in two consecutive 
tests forany regulated pollutant, (HC+NOX 
(NMHC+NOX) orCO) the engine family may be determined to be in 
noncompliance and themanufacturer must notify EPA by contacting its 
official EPAcertification representative within ten working days of 
suchexceedance by the CumSum statistic.
    (e) Within 45 calendar days of the end of each quarter, eachengine 
manufacturer must submit to the Administrator a report whichincludes the 
following information:
    (1) The location and description of the manufacturer's or 
other'sexhaust emission test facilities which were utilized to 
conducttesting reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each 
enginefamily;
    (3) The FEL (standard, if no FEL) against which each engine 
familywas tested;
    (4) A description of the process to obtain engines on a randombasis;
    (5) A description of the test engines;
    (6) For each test conducted:
    (i) A description of the test engine, including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior 
totesting;
    (ii) Location where service accumulation was conducted 
anddescription of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding, final test results before and 
afterrounding and final deteriorated test results for all exhaust 
emissiontests, whether valid or invalid, and the reason for 
invalidation, ifapplicable;
    (iv) A complete description of any adjustment, modification,repair, 
preparation, maintenance, and/or testing which was performedon the test 
engine, was not reported pursuant to any other paragraphof this subpart, 
and will not be performed on all other productionengines;
    (v) A CumSum analysis, as required in Sec. 90.708, ofthe production 
line test results for each engine family; and
    (vi) Any other information the Administrator may request relevantto 
the determination whether the new engines being manufactured by 
themanufacturer do in fact conform with the regulations with respect 
towhich the certificate of conformity was issued;
    (7) For each failed engine as defined in Sec. 90.710(a),a 
description of the remedy and test results for all retests asrequired by 
Sec. 90.711(g);
    (8) The date of the end of the engine manufacturer's model 
yearproduction for each engine family; and
    (9) The following signed statement and endorsement by anauthorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of 
theClean Air Act. This production line testing program was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
Part90. No emission-related changes to production processes or 
qualitycontrol procedures for the engine family tested have been made 
duringthis production line testing program that affect engines from 
theproduction line. All data and information reported herein is, to 
thebest of (Company Name) knowledge, true and accurate. I am aware of 
thepenalties associated with violations of the Clean Air Act and 
theregulations thereunder. (Authorized Company Representative.)



Sec. 90.710  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test 
resultspursuant to

[[Page 279]]

Sec. 90.709(c), for HC+NOX(NMHC+NOX) or CO 
exceeds the applicable Family EmissionLimit (FEL) or standard if no FEL.
    (b) An engine family shall be determined to be in noncompliance,if 
at any time throughout the model year, the CumSum 
statistic,Ci, for HC+NOX (NMHC+NOX) or 
CO,is greater than the action limit, H, for that pollutant, for 
twoconsecutive tests.



Sec. 90.711  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to 
anyengine failing pursuant to Sec. 90.710(a) effective from thetime 
that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformityfor 
an engine family which is determined to be in noncompliancepursuant to 
Sec. 90.710(b). This suspension will not occurbefore thirty days after 
the engine family is determined to be innoncompliance and the 
Administrator has notified the manufacturer ofits intent to suspend. 
During this thirty day period the Administratorwill work with the 
manufacturer to achieve appropriate production linechanges to avoid the 
need to halt engine production, if possible. TheAdministrator will 
approve or disapprove any such production linechanges proposed to 
address a family that has been determined to be innoncompliance under 
this subpart within 15 days of receipt. If theAdministrator does not 
approve or disapprove such a proposed changewithin such time period, the 
proposed change shall be consideredapproved.
    (c) If the results of testing pursuant to the regulations in 
thissubpart indicate that engines of a particular family produced at 
oneplant of a manufacturer do not conform to the regulations in this 
partwith respect to which the certificate of conformity was issued, 
theAdministrator may suspend the certificate of conformity with 
respectto that family for engines manufactured by the manufacturer at 
allother plants.
    (d) Notwithstanding the fact that engines described in 
theapplication for certification may be covered by a certificate 
ofconformity, the Administrator may suspend such certificate 
immediatelyin whole or in part if the Administrator finds any one of 
thefollowing infractions to be substantial:
    (1) The manufacturer refuses to comply with any of therequirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information inany 
report or information provided to the Administrator under thissubpart.
    (3) The manufacturer renders inaccurate any test data submittedunder 
this subpart.
    (4) An EPA enforcement officer is denied the opportunity toconduct 
activities authorized in this subpart and a warrant or courtorder is 
presented to the manufacturer or the party in charge of thefacility in 
question.
    (5) An EPA enforcement officer is unable to conduct 
activitiesauthorized in Sec. 90.705 because a manufacturer has 
locatedits facility in a foreign jurisdiction where local law prohibits 
thoseactivities.
    (e) The Administrator shall notify the manufacturer in writing ofany 
suspension or revocation of a certificate of conformity in wholeor in 
part, except that the certificate is immediately suspended withrespect 
to any failed engines as provided for in paragraph (a) of thissection.
    (f) The Administrator may revoke a certificate of conformity foran 
engine family after the certificate has been suspended pursuant 
toparagraph (b) or (c) of this section if the proposed remedy for 
thenonconformity, as reported by the manufacturer to the 
Administrator,is one requiring a design change or changes to the engine 
and/oremission control system as described in the application 
forcertification of the affected engine family.
    (g) Once a certificate has been suspended for a failed engine, 
asprovided for in paragraph (a) of this section, the manufacturer 
musttake the following actions before the certificate is reinstated 
forthat failed engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the engine conforms to the applicablestandards 
(FELs, where applicable) by retesting the engine inaccordance with these 
regulations; and

[[Page 280]]

    (3) Submit a written report to the Administrator, describedin Sec. 
90.709(e)(7), after successful completion of testingon the failed 
engine, which contains a description of the remedy andtest results for 
each engine in addition to other information that maybe required by this 
part.
    (h) Once a certificate for a failed engine family has beensuspended 
pursuant to paragraph (b) or (c) of this section, themanufacturer must 
take the following actions before the Administratorwill consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the engines, describes theproposed 
remedy, including a description of any proposed qualitycontrol and/or 
quality assurance measures to be taken by themanufacturer to prevent 
future occurrences of the problem, and statesthe date on which the 
remedies will be implemented; and
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theregulations of 
this part by testing as many engines as needed so thatthe CumSum 
statistic, as calculated in Sec. 90.708(a), fallsbelow the action 
limit. Such testing must comply with the provisionsof this part. If the 
manufacturer elects to continue testingindividual engines after 
suspension of a certificate, the certificateis reinstated for any engine 
actually determined to be in conformancewith the Family Emission Limits 
(or standards if no FEL) throughtesting in accordance with the 
applicable test procedures, providedthat the Administrator has not 
revoked the certificate pursuant toparagraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, 
ifthe manufacturer desires to continue introduction into commerce of 
amodified version of that family, the following actions must be 
takenbefore the Administrator may issue a certificate for that 
modifiedfamily:
    (1) If the Administrator determines that the proposed change(s) 
inengine design may have an effect on emission performancedeterioration, 
the Administrator shall notify the manufacturer withinfive working days 
after receipt of the report in paragraph (h)(1) ofthis section whether 
subsequent testing under this subpart will besufficient to evaluate the 
proposed change or changes or whetheradditional testing will be 
required;
    (2) After implementing the change or changes intended to remedythe 
nonconformity, the manufacturer must demonstrate that the modifiedengine 
family does in fact conform with the regulations of this partby testing 
as many engines as needed from the modified engine familyso that the 
CumSum statistic, as calculated inSec. 90.708(a) using the newly 
assigned FEL if applicable,falls below the action limit; and
    (3) When the requirements of paragraphs (i)(1) and (i)(2) of 
thissection are met, the Administrator shall reissue the certificate 
orissue a new certificate, as the case may be, to include that family.As 
long as the CumSum statistic remains above the action limit, 
therevocation remains in effect.
    (j) At any time subsequent to a suspension of a certificate 
ofconformity for a test engine pursuant to paragraph (a) of thissection, 
but not later than 15 days (or such other period as may beallowed by the 
Administrator) after notification of theAdministrator's decision to 
suspend or revoke a certificate ofconformity in whole or in part 
pursuant to paragraph (b), (c), or (f)of this section, a manufacturer 
may request a hearing as to whetherthe tests have been properly 
conducted or any sampling methods havebeen properly applied.
    (k) Any suspension of a certificate of conformity under paragraph(d) 
of this section shall:
    (1) Be made only after the manufacturer concerned has been offeredan 
opportunity for a hearing conducted in accordance withSec. Sec. 90.712 
and 90.713; and
    (2) Not apply to engines no longer in the possession of 
themanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section and prior to the commencement of 
ahearing under Sec. 90.712, if the manufacturer demonstratesto the 
Administrator's satisfaction that the decision to suspend or

[[Page 281]]

revoke the certificate was based on erroneous information, 
theAdministrator shall reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engineswhile 
conducting subsequent testing of the noncomplying family, amanufacturer 
may request that the Administrator conditionallyreinstate the 
certificate for that family. The Administrator mayreinstate the 
certificate subject to the following condition: themanufacturer must 
commit to performing offsetting measures that remedythe nonconformity at 
no expense to the owners, and which are approvedin advance by the 
Administrator for all engines of that familyproduced from the time the 
certificate is conditionally reinstated ifthe CumSum statistic does not 
fall below the action limit.



Sec. 90.712  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator'sdecision 
to suspend or revoke a certificate or disputes the basis foran automatic 
suspension pursuant to Sec. 90.711(a), themanufacturer may request a 
public hearing.
    (b) The manufacturer's request shall be filed with theAdministrator 
not later than 15 days after the Administrator'snotification of his or 
her decision to suspend or revoke, unlessotherwise specified by the 
Administrator. The manufacturer shallsimultaneously serve two copies of 
this request upon the Manager ofthe Engine Compliance Programs Group and 
file two copies with theHearing Clerk for the Agency. Failure of the 
manufacturer to request ahearing within the time provided constitutes a 
waiver of the right toa hearing. Subsequent to the expiration of the 
period for requesting ahearing as of right, the Administrator may, in 
his or her discretionand for good cause shown, grant the manufacturer a 
hearing to contestthe suspension or revocation.
    (c) A manufacturer shall include in the request for a publichearing:
    (1) A statement as to which engine configuration(s) within afamily 
is to be the subject of the hearing; and
    (2) A concise statement of the issues to be raised by 
themanufacturer at the hearing, except that in the case of the 
hearingrequested under Sec. 90.711(j), the hearing is restricted tothe 
following issues:
    (i) Whether tests have been properly conducted (specifically,whether 
the tests were conducted in accordance with applicableregulations under 
this part and whether test equipment was properlycalibrated and 
functioning);
    (ii) Whether sampling plans and statistical analyses have 
beenproperly applied (specifically, whether sampling procedures 
andstatistical analyses specified in this subpart were followed 
andwhether there exists a basis for distinguishing engines produced 
atplants other than the one from which engines were selected for 
testingwhich would invalidate the Administrator's decision underSec. 
90.711(c));
    (3) A statement specifying reasons why the manufacturer believesit 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the 
manufacturer'sposition on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.



Sec. 90.713  Administrative procedures for public hearing.

    The administrative procedures for a public hearing requested 
underthis subpart shall be those procedures set forth in the 
regulationsfound at Sec. Sec. 90.513 through 90.516. References inSec. 
90.513 to Sec. 90.511(j),Sec. 90.512(c)(2), Sec. 90.511(e),Sec. 
90.512, Sec. 90.511(d),Sec. 90.503, Sec. 90.512(c) andSec. 90.512(b) 
shall be deemed to meanSec. 90.711(j), Sec. 90.712(c)(2),Sec. 
90.711(e), Sec. 90.712,Sec. 90.711(d), Sec. 90.703, andSec. 
90.712(c) and Sec. 90.712(b), respectively.References to ``test 
orders'' in Sec. 90.513 arenot applicable.



   Subpart I_Emission-Related Defect Reporting Requirements,Voluntary 
                Emission Recall Program, Ordered Recalls



Sec. 90.801  Applicability.

    (a) The requirements of subpart I are applicable to all 
nonroadengines and vehicles subject to the provisions of subpart A of 
part90. The requirement

[[Page 282]]

to report emission-related defects affectinga given class or category of 
engines will remain applicable for fiveyears from the end of the 
calendar year in which such engines weremanufactured.
    (b) Phase 2 engines subject to provisions of subpart B of thispart 
are subject to recall regulations specified in 40 CFR part 85,subpart S, 
except as otherwise provided in this section.
    (c) Reference to section 214 of the Clean Air Act in 40 
CFR85.1801(a) is deemed to mean section 216 of the Clean Air Act.
    (d) Reference to section 202 of the Act in 40 CFR 85.1802(a) 
isdeemed to mean section 213 of the Act.
    (e) Reference to ``family particulate emissionlimits'' as defined in 
part 86 promulgated under section 202 ofthe Act'' in 40 CFR 85.1803(a) 
and 85.1805(a)(1) is deemed tomean ``family emission limits'' as defined 
in subpart C ofthis part 90 promulgated under section 213 of the Act''.
    (f) Reference to ``vehicles or engines'' throughout 40CFR part 85, 
subpart S is deemed to mean ``Phase 2 nonroad smallSI engines at or 
below 19 kW.''
    (g) In addition to the requirements in 40 CFR 85.1805(a)(9) forPhase 
2 engines include a telephone number provided by themanufacturer, which 
may be used to report difficulty in obtainingrecall repairs.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar.30, 1999]



Sec. 90.802  Definitions.

    The definitions in subpart A of this part apply to this subpart.All 
terms not defined herein or in subpart A have the meaning giventhem in 
the Act. The definitions of 40 CFR 85.1801 also apply to thispart.
    Emission-related defect means a defect in design, materials,or 
workmanship in a device, system, or assembly described in theapproved 
application for certification which affects any applicableparameter or 
specification enumerated in 40 CFR part 85, AppendixVIII.
    Voluntary emission recall means a repair, adjustment, ormodification 
program voluntarily initiated and conducted by amanufacturer to remedy 
any emission-related defect for whichnotification of engine owners has 
been provided.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar.30, 1999]



Sec. 90.803  Emission defect information report.

    (a) A manufacturer must file a defect information report whenever,on 
the basis of data obtained subsequent to the effective date ofthese 
regulations:
    (1) The manufacturer determines, in accordance with 
proceduresestablished by the manufacturer to identify either safety-
related orperformance defects, that a specific emission-related defect 
exists;and
    (2) A specific emission-related defect exists in 25 or moreengines 
of a given engine family manufactured in the same certificateor model 
year.
    (b) No report must be filed under this section for any emission-
related defect corrected prior to the sale of the affected engines 
toultimate purchasers.
    (c) The manufacturer must submit defect information reports toEPA's 
Engine Compliance Programs Group not more than 15 working daysafter an 
emission-related defect is found to affect 25 or more 
enginesmanufactured in the same certificate or model year. 
Informationrequired by paragraph (d) of this section that is either not 
availablewithin 15 working days or is significantly revised must be 
submittedto EPA's Engine Compliance Programs Group as it becomes 
available.
    (d) Each defect report must contain the following information 
insubstantially the format outlined below:
    (1) The manufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of engines 
potentiallyaffected by the defect including make, model, model year, 
calendaryear produced, and any other information required to identify 
theengines affected.
    (4) For each class or category of engine described in response 
toparagraph (d)(3) of this section, the following must also be provided:
    (i) The number of engines known or estimated to have the defectand 
an explanation of the means by which this number was determined.

[[Page 283]]

    (ii) The address of the plant(s) at which the potentiallydefective 
engines were produced.
    (5) An evaluation of the emissions impact of the defect and 
adescription of any operational problems which a defective engine 
mightexhibit.
    (6) Available emission data which relate to the defect.
    (7) An indication of any anticipated manufacturer follow-up.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar.30, 1999]



Sec. 90.804  Voluntary emissions recall.

    (a) When any manufacturer initiates a voluntary emissions 
recallcampaign involving 25 or more engines, the manufacturer must 
submit areport describing the manufacturer's voluntary emissions recall 
planas prescribed by this section within 15 working days of the date 
ownernotification was begun. The report must contain the following:
    (1) A description of each class or category of engines 
recalledincluding the number of engines to be recalled, the model year, 
themake, the model, and such other information as may be required 
toidentify the engines recalled;
    (2) A description of the specific modifications, 
alterations,repairs, corrections, adjustments, or other changes to be 
made tocorrect the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer willnotify 
engine owners and, if applicable, the method by which themanufacturer 
will determine the names and addresses of engine owners;
    (4) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer conditions eligibility for repair under 
therecall plan, an explanation of the manufacturer's reasons for 
imposingany such conditions, and a description of the proof to be 
required ofan engine owner to demonstrate compliance with any such 
conditions;
    (5) A description of the procedure to be followed by engine ownersto 
obtain correction of the nonconformity. This may includedesignation of 
the date on or after which the owner can have thenonconformity remedied, 
the time reasonably necessary to perform thelabor to remedy the defect, 
and the designation of facilities at whichthe defect can be remedied;
    (6) A description of the class of persons other than dealers 
andauthorized warranty agents of the manufacturer who will remedy 
thedefect;
    (7) When applicable, three copies of any letters of notificationto 
be sent engine owners;
    (8) A description of the system by which the manufacturer willassure 
that an adequate supply of parts is available to perform therepair under 
the plan, and that the supply remains both adequate andresponsive to 
owner demand;
    (9) Three copies of all necessary instructions to be sent to 
thosepersons who are to perform the repair under the recall plan;
    (10) A description of the impact of the proposed changes on 
fuelconsumption, performance, and safety of each class or category 
ofengines to be recalled;
    (11) A sample of any label to be applied to engines 
whichparticipated in the voluntary recall campaign.
    (b) The manufacturer must submit at least one report on theprogress 
of the recall campaign. Such report must be submitted nolater than 18 
months from the date notification was begun and includethe following 
information:
    (1) The methods used to notify both engine owners, dealers andother 
individuals involved in the recall campaign;
    (2) The number of engines known or estimated to be affected by 
theemission-related defect and an explanation of the means by which 
thisnumber was determined;
    (3) The number of engines actually receiving repair under theplan; 
and
    (4) The number of engines determined to be ineligible for 
remedialaction due to a failure to properly maintain or use such 
engines.



Sec. 90.805  Reports, voluntary recall plan filing, record retention.

    (a) Send the defect report, voluntary recall plan, and thevoluntary 
recall progress report to: Group Manager, Engine CompliancePrograms 
Group, (6403-J), Environmental Protection Agency,Washington, DC 20460.

[[Page 284]]

    (b) Retain the information gathered by the manufacturer tocompile 
the reports for not less than five years from the date of themanufacture 
of the engines. The manufacturer must make thisinformation available to 
duly authorized officials of the EPA uponrequest.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar.30, 1999]



Sec. 90.806  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart 
doesnot affect a manufacturer's responsibility to file reports 
orapplications, obtain approval, or give notice under any provision 
oflaw.



Sec. 90.807  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report 
isinconclusive as to the existence of a defect subject to the 
warrantyprovided by subpart L of this part.
    (b) A manufacturer may include on each page of its Emission 
DefectInformation Report a disclaimer stating that the filing of a 
DefectInformation Report pursuant to these regulations is not conclusive 
asto the applicability of the warranty provided by subpart L of 
thispart.



Sec. 90.808  Ordered recall provisions.

    (a) Effective with respect to Phase 2 small SI engines:
    (1) If the Administrator determines that a substantial number ofany 
class or category of engines, although properly maintained andused, do 
not conform to the regulations prescribed under section 213of the Act 
when in actual use throughout their useful life (as definedunder Sec. 
90.105), the Administrator shall immediatelynotify the manufacturer of 
such nonconformity and require themanufacturer to submit a plan for 
remedying the nonconformity of theengines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformityof 
any such engines which are properly used and maintained will beremedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination 
ofnonconformity and so advises the Administrator, the Administratorshall 
afford the manufacturer and other interested persons anopportunity to 
present their views and evidence in support thereof ata public hearing. 
Unless, as a result of such hearing, theAdministrator withdraws such 
determination of nonconformity, theAdministrator shall, within 60 days 
after the completion of suchhearing, order the manufacturer to provide 
prompt notification of suchnonconformity in accordance with paragraph 
(a)(2) of this section. Themanufacturer shall comply in all respects 
with the requirements ofthis subpart.
    (2) Any notification required to be given by the manufacturerunder 
paragraph (a)(1) of this section with respect to any class orcategory of 
engines shall be given to dealers, ultimate purchasers,and subsequent 
purchasers (if known) in such manner and containingsuch information as 
required in subparts I and M of this part.
    (3)(i) Prior to an EPA ordered recall, the manufacturer mayperform a 
voluntary emissions recall pursuant to regulations atSec. 90.804. Such 
manufacturer is subject to the reportingand recordkeeping requirements 
of Sec. 90.805.
    (ii) Once EPA determines that a substantial number of engines failto 
conform with the requirements of section 213 of the Act or thispart, the 
manufacturer will not have the option of a voluntary recall.
    (b) The manufacturer bears all cost obligation a dealer incurs asa 
result of a requirement imposed by paragraph (a) of this section.The 
transfer of any such cost obligation from a manufacturer to adealer 
through franchise or other agreement is prohibited.
    (c) Any inspection of an engine for purposes of paragraph (a)(1)of 
this section, after its sale to the ultimate purchaser, is to bemade 
only if the owner of such vehicle or engine voluntarily permitssuch 
inspection to be made, except as may be provided by any state orlocal 
inspection program.

[64 FR 15251, Mar. 30, 1999]

[[Page 285]]



  Subpart J_Exclusion and Exemption of Nonroad Enginesfrom Regulations



Sec. 90.901  Applicability.

    The requirements of subpart J are applicable to all nonroadengines 
and vehicles subject to the provisions of subpart A of part90.



Sec. 90.902  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart:
    Exemption means exemption from the prohibitions ofSec. 90.1003.
    Export exemption means an exemption granted underSec. 90.1004(b) 
for the purpose of exporting new nonroadengines.
    National security exemption means an exemption granted underSec. 
90.1004(b) for the purpose of national security.
    Manufacturer-owned nonroad engine means an uncertifiednonroad engine 
owned and controlled by a nonroad engine manufacturerand used in a 
manner not involving lease or sale by itself or in avehicle employed 
from year to year in the ordinary course of businessfor product 
development, production method assessment, and marketpromotion purposes.
    Testing exemption means an exemption granted underSec. 90.1004(b) 
for the purpose of research, investigations,studies, demonstrations or 
training, but not including nationalsecurity.



Sec. 90.903  Exclusions, application of section 216 (10) and (11) of the Act.

    (a) For the purpose of determining the applicability of 
section216(10) of the Act, an internal combustion engine (including the 
fuelsystem) that is not used in a motor vehicle is deemed a 
nonroadengine, if it meets the definition in subpart A of this part. For 
thepurpose of determining the applicability of section 216(11) of 
theAct, a vehicle powered by a nonroad engine is deemed a 
nonroadvehicle, if it meets the definition in subpart A of this part.
    (b) EPA will maintain a list of models of nonroad engines andmodels 
of nonroad vehicles that have been determined to be excludedbecause they 
are used solely for competition. This list will beavailable to the 
public and may be obtained by writing to thefollowing address: Group 
Manager, Engine Compliance Programs Group,Engine Programs and Compliance 
Division (6403J) EnvironmentalProtection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA willmake 
written determinations as to whether certain engines are or arenot 
nonroad engines. Engines that are determined not to be nonroadengines 
are excluded from regulations under this part.

[61 FR 52102, Oct. 4, 1996]



Sec. 90.904  Who may request an exemption.

    (a) Any person may request a testing exemption underSec. 90.905.
    (b) Any nonroad engine manufacturer may request a nationalsecurity 
exemption under Sec. 90.908.
    (c) For nonroad engine manufacturers, nonroad engines 
manufacturedfor export purposes are exempt without application, subject 
to theprovisions of Sec. 90.909.
    (d) For eligible manufacturers, as determined bySec. 90.906, 
manufacturer-owned nonroad engines are exemptwithout application, 
subject to the provisions ofSec. 90.906.
    (e) For any person, display nonroad engines are exempt 
withoutapplication, subject to the provisions of Sec. 90.907.



Sec. 90.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate 
thefollowing:
    (1) That the proposed test program has a purpose which constitutesan 
appropriate basis for an exemption in accordance withSec. 90.1004(b), 
and in accordance with subsection (b) ofthis section;
    (2) That the proposed test program necessitates the granting of 
anexemption, in accordance with subsection (c) of this section;
    (3) That the proposed test program exhibits reasonableness inscope, 
in accordance with subsection (d) of this section; and
    (4) That the proposed test program exhibits a degree of 
controlconsonant with the purpose of the program and

[[Page 286]]

EPA's monitoringrequirements, in accordance with subsection (e) of this 
section.
    (b) With respect to the purpose of the proposed test program, 
anappropriate purpose would be research, investigations, 
studies,demonstrations, or training, but not national security. A 
concisestatement of purpose is a required item of information.
    (c) With respect to the necessity that an exemption be 
granted,necessity arises from an inability to achieve the stated purpose 
in apracticable manner without performing or causing to be performed 
oneor more of the prohibited acts under Sec. 90.1003. Inappropriate 
circumstances, time constraints may be a sufficient basisfor necessity, 
but the cost of certification alone, in the absence ofextraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit 
aduration of reasonable length and affect a reasonable number ofengines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration; and
    (2) The maximum number of nonroad engines involved.
    (e) With respect to control, the test program must 
incorporateprocedures consistent with the purpose of the test and be 
capable ofaffording EPA monitoring capability. As a minimum, required 
items ofinformation include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated withthe 
test;
    (4) The ownership arrangement with regard to the engines involvedin 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engines used in the test will 
beidentified, and that identification recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new nonroad engines may request a 
testingexemption to cover nonroad engines intended for use in test 
programsplanned or anticipated over the course of a subsequent one-
yearperiod. Unless otherwise required by the Director, Engine Programs 
andCompliance Division, a manufacturer requesting such an exemption 
needonly furnish the information required by paragraphs (a)(1) and 
(d)(2)of this section along with a description of the recordkeeping 
andcontrol procedures that will be employed to assure that the 
enginesare used for purposes consistent with Sec. 90.1004(b).

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar.30, 1999]



Sec. 90.906  Manufacturer-owned exemption and precertification exemption.

    (a) Any manufacturer owned nonroad engine, as defined bySec. 
90.902, is exempt from Sec. 90.1003, withoutapplication, if the 
manufacturer complies with the following terms andconditions:
    (1) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed information on 
eachexempted engine:
    (i) Engine identification number;
    (ii) Use of the engine on exempt status; and
    (iii) Final disposition of any engine removed from exempt status.
    (2) The manufacturer must provide right of entry and access tothese 
records to EPA authorized representatives as required bySec. 90.506.
    (3) Unless the requirement is waived or an alternative procedureis 
approved by the Director, Engine Programs and Compliance Division,the 
manufacturer must permanently affix a label to each nonroad engineon 
exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine;
    (ii) Be attached in such a manner that it cannot be removedwithout 
destruction or defacement;
    (iii) State in the English language and in block letters andnumerals 
of a color that contrasts with the background of the label,the following 
information:
    (A) The label heading ``Emission ControlInformation;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and modelyear 
of

[[Page 287]]

engine; or person or office to be contacted for furtherinformation about 
the engine;
    (D) The statement ``This nonroad engine is exempt from 
theprohibitions of 40 CFR 90.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents 
amanufacturer from including any other information it desires on 
thelabel.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar.30, 1999]



Sec. 90.907  Display exemption.

    Where an uncertified nonroad engine is a display engine to be 
usedsolely for display purposes, will only be operated incident 
andnecessary to the display purpose, and will not be sold unless 
anapplicable certificate of conformity has been received or the 
enginehas been finally admitted pursuant to subpart G of this part, 
norequest for exemption of the engine is necessary.



Sec. 90.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, whichis 
used in a vehicle or equipment that exhibits substantial 
featuresordinarily associated with military combat such as armor and/
orpermanently affixed weaponry and which will be owned and/or used by 
anagency of the federal government with responsibility for 
nationaldefense, will be considered exempt from this part for purposes 
ofnational security. No request for exemption is necessary.
    (2) Manufacturers may request a national security exemption forany 
nonroad engine, otherwise subject to this part, which does notmeet the 
conditions described in paragraph (a)(1) of this section. Amanufacturer 
requesting a national security exemption must state thepurpose for which 
the exemption is required and the request must beendorsed by an agency 
of the federal government charged withresponsibility for national 
defense.
    (b) EPA will maintain a list of models of nonroad engines (and 
thevehicles or equipment which use them) that have been granted 
anational security exemption under paragraph (a)(2) of this section.This 
list will be available to the public and may be obtained bywriting to 
the following address: Group Manager, Engine CompliancePrograms Group, 
Engine Programs and Compliance Division (6403J)Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460.

[61 FR 52102, Oct. 4, 1996]



Sec. 90.909  Export exemptions.

    (a) A new nonroad engine intended solely for export, and solabeled 
or tagged on the outside of the container and on the engineitself, is 
subject to the provisions of Sec. 90.1003, unlessthe importing country 
has new nonroad engine emission standards whichdiffer from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a 
countryhaving no standards, whatsoever, is deemed to be a country 
havingemission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have inforce 
nonroad emission standards identical to U.S. EPA standards andhave so 
notified EPA. This list may be obtained by writing to thefollowing 
address: Group Manager, Engine Compliance Programs Group,Engine Programs 
and Compliance Division (6403-J), EnvironmentalProtection Agency, 
Washington, DC 20460. New nonroad engines exportedto such countries must 
comply with U.S. EPA certification regulations.
    (d) It is a condition of any exemption for the purpose of 
exportunder Sec. 90.1004(b) that such exemption be void ab initiowith 
respect to a new nonroad engine intended solely for export ifsuch 
nonroad engine is sold, or offered for sale, to an ultimatepurchaser in 
the United States for purposes other than export.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar.30, 1999]



Sec. 90.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request 
madepursuant to Sec. 90.905 or Sec. 90.908, EPAdetermines it is 
appropriate to grant such an exemption, a memorandumof exemption is to 
be prepared and submitted to the person requestingthe exemption. The 
memorandum is to set forth the basis for theexemption, its scope, and 
such terms and conditions as are deemed

[[Page 288]]

necessary. Such terms and conditions generally include, but arenot 
limited to, agreements by the applicant to conduct the exemptactivity in 
the manner described to EPA, create and maintain adequaterecords 
accessible to EPA at reasonable times, employ labels for theexempt 
engines setting forth the nature of the exemption, takeappropriate 
measures to assure that the terms of the exemption aremet, and advise 
EPA of the termination of the activity and theultimate disposition of 
the engines.
    (b) Any exemption granted pursuant to paragraph (a) of thissection 
is deemed to cover any subject engine only to the extent thatthe 
specified terms and conditions are complied with. A breach of anyterm or 
condition causes the exemption to be void ab initio withrespect to any 
engine. Consequently, the causing or the performing ofan act prohibited 
under Sec. 90.1003(a) (1) or (3), otherthan in strict conformity with 
all terms and conditions of thisexemption, renders the person to whom 
the exemption is granted, andany other person to whom the provisions of 
Sec. 90.1003 areapplicable, liable to suit under sections 204 and 205 
of the Act.



Sec. 90.911  Submission of exemption requests.

    Requests for exemption or further information concerningexemptions 
and/or the exemption request review procedure should beaddressed to: 
Group Manager, Engine Compliance Programs Group, EnginePrograms and 
Compliance Division (6403J), Environmental ProtectionAgency, Washington, 
DC 20460.

[64 FR 15252, Mar. 30, 1999]



Sec. 90.912  Treatment of confidential information.

    The provisions for treatment of confidential information describedin 
Sec. 90.4 apply to this subpart.



Sec. 90.913  Exemption for engines certified to standards for large SI engines.

    (a) An engine is exempt from the requirements of this part if itis 
in an engine family that has a valid certificate of conformityshowing 
that it meets emission standards and other requirements under40 CFR part 
1048 for the appropriate model year.
    (b) The only requirements or prohibitions from this part thatapply 
to an engine that is exempt under this section are in thissection.
    (c) If your engines do not have the certificate required inparagraph 
(a) of this section, they will be subject to the provisionsof this part. 
Introducing these engines into commerce without a validexemption or 
certificate of conformity violates the prohibitions inSec. 90.1003.
    (d) Engines exempted under this section are subject to all 
therequirements affecting engines under 40 CFR part 1048. 
Therequirements and restrictions of 40 CFR part 1048 apply to 
anyonemanufacturing these engines, anyone manufacturing equipment that 
usesthese engines, and all other persons in the same manner as if 
thesewere nonroad spark-ignition engines above 19 kW.
    (e) Engines exempted under this section may not generate or 
useemission credits under this part 90.

[70 FR 40450, July 13, 2005]



       Subpart K_Prohibited Acts and General EnforcementProvisions



Sec. 90.1001  Applicability.

    The requirements of subpart K are applicable to all nonroadengines 
and vehicles subject to the provisions of subpart A of part90.



Sec. 90.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart.All 
terms not defined herein or in subpart A have the meaning giventhem in 
the Act.



Sec. 90.1003  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new nonroad engines 
orvehicles for distribution in commerce, the sale, the offering forsale, 
or the introduction, or delivery for introduction, intocommerce, of any 
new nonroad engine manufactured after the applicableeffective date under 
this part unless such engine

[[Page 289]]

is covered by acertificate of conformity issued (and in effect) under 
regulationsfound in this part.
    (ii) In the case of any person, except as provided by regulationof 
the Administrator, the importation into the United States of anynew 
nonroad engine manufactured after the applicable effective dateunder 
this part unless such engine is covered by a certificate ofconformity 
issued (and in effect) under regulations found in thispart.
    (2) (i) For a person to fail or refuse to permit access to orcopying 
of records or to fail to make reports or provide informationrequired 
under Sec. 90.1004.
    (ii) For a person to fail or refuse to permit entry, testing 
orinspection authorized under Sec. Sec. 90.126, 90.506,90.705, 90.1004, 
or 90.1207.
    (iii) For a person to fail or refuse to perform tests or to 
havetests performed as required under Sec. Sec. 90.119,90.504, 90.703, 
90.1004, 90.1204.
    (iv) For a person to fail to establish or maintain records 
asrequired under Sec. Sec. 90.209, 90.704, 90.805, or90.1004.
    (v) For a person to fail to submit a remedial plan as requiredunder 
Sec. 90.808.
    (3)(i) For a person to remove or render inoperative a device 
orelement of design installed on or in a nonroad engine in 
compliancewith regulations under this part prior to its sale and 
delivery to theultimate purchaser, or for a person knowingly to remove 
or renderinoperative such a device or element of design after the sale 
anddelivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, orinstall, 
a part or component intended for use with, or as part of, anonroad 
engine, where a principal effect of the part or component isto bypass, 
defeat, or render inoperative a device or element of designinstalled on 
or in a nonroad engine in compliance with regulationsissued under this 
part, and where the person knows or should know thatthe part or 
component is being offered for sale or installed for thisuse or put to 
such use.
    (4) For a manufacturer of a new nonroad engine subject tostandards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver intocommerce, a 
nonroad engine unless the manufacturer has complied withthe requirements 
of Sec. 90.1103.
    (ii) To sell, offer for sale, or introduce or deliver intocommerce, 
a nonroad engine unless a label or tag is affixed to theengine in 
accordance with regulations under this part.
    (iii) To fail or refuse to comply with the requirements ofSec. 
90.808.
    (iv) To provide directly or indirectly in any communication to 
theultimate purchaser or a subsequent purchaser that the coverage of 
awarranty under the Act is conditioned upon use of a part, component,or 
system manufactured by the manufacturer or a person acting for 
themanufacturer or under its control, or conditioned upon 
serviceperformed by such persons, except as provided in subpart L of 
thispart.
    (v) To fail or refuse to comply with the terms and conditions ofthe 
warranty under subpart L of this part.
    (5) For a manufacturer of new nonroad vehicles to distribute 
incommerce, sell, offer for sale, or introduce into commerce, 
nonroadvehicles which contain an engine not covered by a certificate 
ofconformity (except as specified in paragraph (b)(4) of this section)or 
which contain a handheld engine in a nonhandheld vehicle.
    (6) For a person to circumvent or attempt to circumvent theresidence 
time requirements of Paragraph (a) (2)(iii) of this Sectionof the 
nonroad engine definition in Sec. 90.3.
    (b) For the purposes of enforcement of this part, the 
followingapply:
    (1) Nothing in paragraph (a) of this section is to be construed 
torequire the use of manufacturer parts in maintaining or repairing 
anonroad engine.
    (2) Actions for the purpose of repair or replacement of a deviceor 
element of design or any other item are not considered prohibitedacts 
under Sec. 90.1003(a) if the actions are a necessaryand temporary 
procedure, the device or element is replaced uponcompletion of the 
procedure, and the action results in the properfunctioning of the device 
or element of design.
    (3) Actions for the purpose of a conversion of a nonroad enginefor 
use of a clean alternative fuel (as defined in Title II of theAct) are 
not considered prohibited acts underSec. 90.1003(a) if:

[[Page 290]]

    (i) The vehicle complies with the applicable standard whenoperating 
on the alternative fuel, and the device or element isreplaced upon 
completion of the conversion procedure, and
    (ii) In the case of engines converted to dual fuel or flexibleuse, 
the action results in proper functioning of the device or elementwhen 
the nonroad engine operates on conventional fuel.
    (4) Certified nonroad engines shall be used in all equipment 
orvehicles that are self-propelled, portable, transportable, or 
areintended to be propelled while performing their function, unless 
themanufacturer of the equipment or vehicle can prove that the vehicle 
orequipment will be used in a manner consistent with paragraph (2) ofthe 
definition of Nonroad engine in Sec. 90.3. Nonroadvehicle and equipment 
manufacturers may continue to use noncertifiednonroad engines built 
prior to the applicable implementation date ofthe Phase 1 rule until 
noncertified engine inventories are depleted;further after the 
applicable implementation of the Phase 2 regulationsin this part, 
nonroad vehicle and equipment manufacturers may continueto use Phase 1 
engines until Phase 1 engine inventories are depleted.Stockpiling (i.e., 
build up of an inventory of uncertified engines orPhase 1 engines beyond 
normal business practices to avoid or delaycompliance with the Phase 1 
or Phase 2 regulations in this part,respectively) will be considered a 
violation of this section.
    (5) A new nonroad engine, intended solely to replace an engine ina 
piece of nonroad equipment that was originally produced with anengine 
manufactured prior to the applicable implementation date asdescribed in 
Sec. Sec. 90.2, 90.103 and 90.106, or with anengine that was originally 
produced in a model year in which lessstringent standards under this 
part were in effect, shall not besubject to the requirements of Sec. 
90.106 or prohibitionsand provisions of paragraphs (a)(1) and (b)(4) of 
this sectionprovided that:
    (i) The engine manufacturer has ascertained that no engineproduced 
by itself or the manufacturer of the engine that is beingreplaced, if 
different, and certified to the requirements of thissubpart, is 
available with the appropriate physical or performancecharacteristics to 
repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership 
andpossession of the old engine in partial exchange for the 
replacementengine; and
    (iii) The replacement engine is clearly labeled with the 
followinglanguage, or similar alternate language approved in advance by 
theAdministrator:

THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FORANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE IN A NONROAD VEHICLE ORPIECE OF NONROAD 
EQUIPMENT WHOSE ORIGINAL ENGINE WAS NOT CERTIFIED, ORWAS CERTIFIED TO 
LESS STRINGENT EMISSION STANDARDS THAN THOSE THATAPPLY TO THE YEAR OF 
MANUFACTURE OF THIS ENGINE, IS A VIOLATION OFFEDERAL LAW SUBJECT TO 
CIVIL PENALTY;


and
    (iv) Where the replacement engine is intended to replace an 
enginebuilt after the applicable implementation date of regulations 
underthis part, but built to less stringent emission standards than 
arecurrently applicable, the replacement engine shall be identical in 
allmaterial respects to a certified configuration of the same or 
latermodel year as the engine being replaced.
    (v) In cases where an engine is to be imported for 
replacementpurposes under the provisions of this paragraph (b)(5), the 
term``engine manufacturer'' shall not apply to an individualor other 
entity that does not possess a current Certificate ofConformity issued 
by EPA under this part.
    (6)(i) Regulations elsewhere in this part notwithstanding, forthree 
model years after the phase-in of each set of Class I throughClass V 
Phase 2 standards; i.e. up to and including August 1, 2010 forClass I 
engines, up to and including model year 2008 for Class IIengines, up to 
and including model year 2008 for Class III and ClassIV engines, and up 
to and including model year 2010 for Class Vengines, small volume 
equipment manufacturers as defined in this part,may continue to use, and 
engine manufacturers may continue to supply,engines certified to Phase 1

[[Page 291]]

standards (or identified and labeledby their manufacturer to be 
identical to engines previously certifiedunder Phase 1 standards), 
provided the equipment manufacturer hasdemonstrated to the satisfaction 
of the Administrator that nocertified Phase 2 engine is available with 
suitable physical orperformance characteristics to power a piece of 
equipment inproduction prior to the initial effective date of Phase 2 
standards,as indicated in Sec. 90.103(a). The equipment 
manufacturermust also certify to the Administrator that the equipment 
model hasnot undergone any redesign which could have facilitated 
conversion ofthe equipment to accommodate a Phase 2 engine. These 
provisions do notapply to Class I-A and Class I-B engines.
    (ii) Regulations elsewhere in this part notwithstanding, for 
theduration of the Phase 2 rule in this part, equipment 
manufacturersthat produce small volume equipment models, as defined in 
this part,for a Class I model in production prior to August 1, 2007, or 
a ClassII model in production prior to the 2001 model year, or a Class 
III orClass IV model in production prior to the 2002 model year, or a 
ClassV model in production prior to the 2004 model year, may continue 
touse in that small volume equipment model, and engine manufacturers 
maycontinue to supply, engines certified to Phase 1 requirements 
(oridentified and labeled by their manufacturer to be identical 
toengines previously certified under Phase 1 standards). To be 
eligiblefor this provision, the equipment manufacturer must have 
demonstratedto the satisfaction of the Administrator that no certified 
Phase 2engine is available with suitable physical or 
performancecharacteristics to power the small volume equipment model. 
Theequipment manufacturer must also certify to the Administrator that 
theequipment model has not undergone any redesign which could 
havefacilitated conversion of the equipment to accommodate a Phase 
2engine. These provisions do not apply to Class I-A and Class I-
Bengines.
    (iii) An equipment manufacturer which is unable to obtain 
suitablePhase 2 engines and which can not obtain relief under any 
otherprovision of this part, may, prior to the date on which 
themanufacturer would become in noncompliance with the requirement to 
usePhase 2 engines, apply to the Administrator to be allowed to 
continueusing Phase 1 engines, through August 1, 2008 for Class I 
engines,through the 2006 model year for Class II engines, through the 
2006model year for Class III and Class IV engines, and through the 
2008model year for Class V engines, subject to the following 
criteria(These provisions do not apply to Class I-A and Class I-B 
engines.):
    (A) The inability to obtain Phase 2 engines is despite 
themanufacturer's best efforts and is the result of an 
extraordinaryaction on the part of the engine manufacturer that was 
outside thecontrol of and could not be reasonably foreseen by the 
equipmentmanufacturer; such as canceled production or shipment, last 
minutecertification failure, unforeseen engine cancellation, plant 
closing,work stoppage or other such circumstance; and
    (B) the inability to market the particular equipment will 
bringsubstantial economic hardship to the equipment manufacturer 
resultingin a major impact on the equipment manufacturer's solvency.
    (iv) The written permission from the Administrator to theequipment 
manufacturer shall serve as permission for the enginemanufacturer to 
provide such Phase 1 engines required by the equipmentmanufacturers 
under this paragraph (b)(6) of this section. As Phase 1engines, these 
engines are exempt from Production Line Testingrequirements under 
subpart H of this part and in-use testingprovisions under subpart M of 
this part, and are excluded from thecertification averaging, banking and 
trading program of subpart C ofthis part.
    (7) Actions for the purpose of installing or removing altitudekits 
and performing other changes to compensate for altitude change 
asdescribed in the application for certification pursuant toSec. 
90.107(d) and approved at the time of certificationpursuant to Sec. 
90.108(a) are not considered prohibitedacts under paragraph (a) of this 
section.

[60 FR 34598, July 3, 1995, as amended at 62 FR 42644, Aug. 7,1997; 64 
FR 15252, Mar. 30, 1999; 65 FR 24313, Apr. 25, 2000]

[[Page 292]]



Sec. 90.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Everymanufacturer of new 
nonroad engines and other persons subject to therequirements of this 
part must establish and maintain records, performtests where such 
testing is not otherwise reasonably available underthis part, make 
reports and provide information the Administrator mayreasonably require 
to determine whether the manufacturer or otherperson has acted or is 
acting in compliance with this part or tootherwise carry out the 
provisions of this part, and must, uponrequest of an officer or employee 
duly designated by theAdministrator, permit the officer or employee at 
reasonable times tohave access to and copy such records. The 
manufacturer shall comply inall respects with the requirements of 
subpart I of this part.
    (2) For purposes of enforcement of this part, an officer oremployee 
duly designated by the Administrator, upon presentingappropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of 
themanufacturer, or of any person whom the manufacturer engaged 
toperform any activity required under paragraph (a)(1) of this 
section,for the purposes of inspecting or observing any activity 
conductedpursuant to paragraph (a)(1) of this section; and
    (ii) To inspect records, files, papers, processes, controls, 
andfacilities used in performing an activity required by paragraph 
(a)(1)of this section, by the manufacturer or by a person whom 
themanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a newnonroad 
engine from Sec. 90.1003 upon such terms andconditions as the 
Administrator may find necessary for the purpose ofexport, research, 
investigations, studies, demonstrations, ortraining, or for reasons of 
national security.
    (c) Importation provision. (1) A new nonroad engine orvehicle 
offered for importation or imported by a person in violationof Sec. 
90.1003 is to be refused admission into the UnitedStates, but the 
Secretary of the Treasury and the Administrator may,by joint regulation, 
provide for deferring a final determination as toadmission and 
authorizing the delivery of such a nonroad engineoffered for import to 
the owner or consignee thereof upon such termsand conditions (including 
the furnishing of a bond) as may appear tothem appropriate to insure 
that the nonroad engine will be broughtinto conformity with the 
standards, requirements, and limitationsapplicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under 
thisparagraph, the Secretary of the Treasury shall cause 
dispositionthereof in accordance with the customs laws unless it is 
exported,under regulations prescribed by the Secretary, within 90 days 
of thedate of notice of the refusal or additional time as may be 
permittedpursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not bemade 
in such manner as may result, directly or indirectly, in thesale, to the 
ultimate purchaser, of a new nonroad engine that fails tocomply with 
applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solelyfor 
export, and so labeled or tagged on the outside of the containerand on 
the engine itself, shall be subject to the provisions ofSec. 90.1003, 
except that if the country that is to receivethe engine has emission 
standards that differ from the standardsprescribed under subpart B of 
this part, then the engine must complywith the standards of the country 
that is to receive the engine.



Sec. 90.1005  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction 
torestrain violations of Sec. 90.1003.
    (b) Actions to restrain such violations must be brought by and inthe 
name of the United States. In an action, subpoenas for witnesseswho are 
required to attend a district court in any district may runinto any 
other district.

[[Page 293]]



Sec. 90.1006  Penalties.

    (a) Violations. A violation of the requirements of thissubpart is a 
violation of the applicable provisions of the Act and issubject to the 
penalty provisions thereunder.
    (1) A person who violates Sec. 90.1003(a)(1), (a)(4), or(a)(5), or 
a manufacturer or dealer who violatesSec. 90.1003(a)(3)(i), is subject 
to a civil penalty of notmore than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violatesSec. 
90.1003(a)(3)(i) or any person who violatesSec. 90.1003(a)(3)(ii) is 
subject to a civil penalty of notmore than $2,750 for each violation.
    (3) A violation with respect to Sec. 90.1003(a)(1), (a)(3)(i), 
(a)(4), or (a)(5) constitutes a separate offense with respectto each 
nonroad engine.
    (4) A violation with respect to Sec. 90.1003(a)(3)(ii)constitutes a 
separate offense with respect to each part or component.Each day of a 
violation with respect to Sec. 90.1003(a)(6)constitutes a separate 
offense.
    (5) A person who violates Sec. 90.1003(a)(2) or (a)(6)is subject to 
a civil penalty of not more than $32,500 per day ofviolation.
    (6) The maximum penalty values listed in this section are shownfor 
calendar year 2004. Maximum penalty limits for later years may 
beadjusted based on the Consumer Price Index. The specific 
regulatoryprovisions for changing the maximum penalties, published in 40 
CFRpart 19, reference the applicable U.S. Code citation on which 
theprohibited action is based.
    (b) Civil actions. The Administrator may commence a civilaction to 
assess and recover any civil penalty under paragraph (a) ofthis section.
    (1) An action under this paragraph may be brought in the 
districtcourt of the United States for the district in which the 
violation isalleged to have occurred, the defendant resides, or 
theAdministrator's principal place of business is located, and in 
whichthe court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessedunder 
this paragraph, the court is to take into account the gravity ofthe 
violation, the economic benefit or savings (if any) resulting fromthe 
violation, the size of the violator's business, the violator'shistory of 
compliance with Title II of the Act, action taken to remedythe 
violation, the effect of the penalty on the violator's ability 
tocontinue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are requiredto 
attend a district court in any district may run into any otherdistrict.
    (c) Administrative assessment of certain penalties. 
(1)Administrative penalty authority. In lieu of commencing a civil 
actionunder paragraph (b) of this section, the Administrator shall 
assessany civil penalty prescribed in paragraph (a) of this section, 
exceptthat the maximum amount of penalty sought against each violator in 
apenalty assessment proceeding can not exceed $270,000, unless 
theAdministrator and the Attorney General jointly determine that a 
matterinvolving a larger penalty amount is appropriate for 
administrativepenalty assessment. Any such determination by the 
Administrator andthe Attorney General is not subject to judicial review. 
Assessment ofa civil penalty is made by an order made on the record 
afteropportunity for a hearing held in accordance with the procedures 
foundat part 22 of this chapter. The Administrator may compromise, 
orremit, with or without conditions, any administrative penalty whichmay 
be imposed under this section.
    (2) Determining amount. In determining the amount of anycivil 
penalty assessed under this subsection, the Administrator is totake into 
account the gravity of the violation, the economic benefitor savings (if 
any) resulting from the violation, the size of theviolator's business, 
the violator's history of compliance with TitleII of the Act, action 
taken to remedy the violation, the effect of thepenalty on the 
violator's ability to continue in business, and suchother matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by theAdministrator 
under this paragraph does not affect or limit theAdministrator's 
authority to enforce any provisions of this part;except that

[[Page 294]]

any violation with respect to which the Administratorhas commenced and 
is diligently prosecuting an action under this part,or for which the 
Administrator has issued a final order not subject tofurther judicial 
review and for which the violator has paid a penaltyassessment under 
this part may not be the subject of a civil penaltyaction under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this part affects 
aperson's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this partbecomes final 
30 days after its issuance unless a petition forjudicial review is filed 
under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civilpenalty is 
assessed in accordance with this part may seek review ofthe assessment 
in the United States District Court for the District ofColumbia or for 
the district in which the violation is alleged to haveoccurred, in which 
such person resides, or where the person'sprinciple place of business is 
located, within the 30-day periodbeginning on the date a civil penalty 
order is issued. The person mustsimultaneously send a copy of the filing 
by certified mail to theAdministrator and the Attorney General.
    (ii) The Administrator must file in the court within 30 days 
acertified copy, or certified index, as appropriate, of the record 
onwhich the order was issued. The court is not to set aside or remandany 
order issued in accordance with the requirements of this paragraphunless 
substantial evidence does not exist in the record, taken as awhole, to 
support the finding of a violation or unless theAdministrator's 
assessment of the penalty constitutes an abuse ofdiscretion, and the 
court is not to impose additional civil penaltiesunless the 
Administrator's assessment of the penalty constitutes anabuse of 
discretion. In any proceedings, the United States may seek torecover 
civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessmentof a 
civil penalty imposed by the Administrator as provided in thispart after 
the order making the assessment has become final or after acourt in an 
action brought under paragraph (c)(5) of this section hasentered a final 
judgment in favor of the Administrator, theAdministrator is to request 
that the Attorney General bring a civilaction in an appropriate district 
court to recover the amount assessed(plus interest at rates established 
pursuant to section 6621(a)(2) ofthe Internal Revenue Code of 1986 from 
the date of the final order orthe date of final judgment, as the case 
may be). In such an action,the validity, amount, and appropriateness of 
the penalty are notsubject to review.
    (ii) A person who fails to pay on a timely basis the amount of 
anassessment of a civil penalty as described in paragraph (c)(6)(i) 
ofthis section is required to pay, in addition to that amount 
andinterest, the United States' enforcement expenses, 
includingattorney's fees and costs for collection proceedings, and a 
quarterlynonpayment penalty for each quarter during which the failure to 
paypersists. The nonpayment penalty is an amount equal to 10 percent 
ofthe aggregate amount of that person's penalties and 
nonpaymentpenalties which are unpaid as of the beginning of such 
quarter.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July13, 2005]



        Subpart L_Emission Warranty and Maintenance Instructions



Sec. 90.1101  Applicability.

    The requirements of subpart L are applicable to all nonroadengines 
and vehicles subject to the provisions of subpart A of part90.



Sec. 90.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 90.1103  Emission warranty, warranty period.

    (a) Warranties imposed by this subpart shall be for the first 
twoyears of engine use from the date of sale to the ultimate 
purchaser.Manufacturers of handheld engines subject to Phase 2 standards 
mayapply to the Administrator for approval for a warranty period of 
lessthan two years for handheld

[[Page 295]]

engines that are subject to severeservice in seasonal equipment and are 
likely to run their full usefullife hours in less than two years. Such 
an application must be madeprior to certification. Alternatively, 
manufacturers of handheldengines subject to Phase 2 standards may apply 
to the Administratorfor approval for a warranty period equal to the 
useful life of theengine or two years, whichever is less, if the 
equipment in which theengine is placed is equipped with a meter for 
measuring hours of use.Such an application must be made prior to 
certification.
    (b) The manufacturer of each new nonroad engine must warrant tothe 
ultimate purchaser and each subsequent purchaser that the engineis 
designed, built and equipped so as to conform at the time of salewith 
applicable regulations under section 213 of the Act, and theengine is 
free from defects in materials and workmanship which causesuch engine to 
fail to conform with applicable regulations for itswarranty period.
    (c) In the case of a nonroad engine part, the manufacturer 
orrebuilder of the part may certify according to Sec. 85.2112of this 
chapter that use of the part will not result in a failure ofthe engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any nonroadengine 
warranted under this part is responsible for the propermaintenance of 
the engine as stated in the manufacturer's writteninstructions. Proper 
maintenance generally includes replacement andservice, at the owner's 
expense at a service establishment or facilityof the owner's choosing, 
such items as spark plugs, points,condensers, and any other part, item, 
or device related to emissioncontrol (but not designed for emission 
control) under the terms of thelast sentence of section 207(a)(3) of the 
Act, unless such part, item,or device is covered by any warranty not 
mandated by this Act.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar.30, 1999; 65 
FR 24314, Apr. 25, 2000]



Sec. 90.1104  Furnishing of maintenance instructions to ultimate purchaser.

    (a) The manufacturer must furnish or cause to be furnished to 
theultimate purchaser of each new nonroad engine written instructions 
forthe maintenance needed to assure proper functioning of the 
emissioncontrol system.
    (b) The manufacturer must provide in boldface type on the firstpage 
of the written maintenance instructions notice that 
maintenance,replacement, or repair of the emission control devices and 
systems maybe performed by any nonroad engine repair establishment or 
individual.
    (c) The instructions under paragraph (b) of this section will 
notinclude any condition on the ultimate purchaser's using, in 
connectionwith such engine, any component or service (other than a 
component orservice provided without charge under the terms of the 
purchaseagreement) which is identified by brand, trade, or corporate 
name.Such instructions also will not directly or indirectly 
distinguishbetween service performed by the franchised dealers of 
suchmanufacturer or any other service establishments with which 
suchmanufacturer has a commercial relationship and service performed 
byindependent nonroad engine repair facilities with which 
suchmanufacturer has no commercial relationship.
    (d) The prohibition of paragraph (c) of this section may be waivedby 
the Administrator if:
    (1) The manufacturer satisfies the Administrator that the enginewill 
function properly only if the component or service so identifiedis used 
in connection with such engine; and
    (2) The Administrator finds that such a waiver is in the 
publicinterest.
    (e) If a manufacturer includes in an advertisement a 
statementrespecting the cost or value of emission control devices or 
systems,the manufacturer shall set forth in the statement the cost or 
valueattributed to these devices or systems by the Secretary of 
Labor(through the Bureau of Labor Statistics). The Secretary of Labor, 
andhis or her representatives, has the same access for this purpose 
tothe books, documents, papers, and records of a manufacturer as 
theComptroller General has to those of a recipient of

[[Page 296]]

assistance forpurposes of section 311 of the Act.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar.30, 1999]



                   Subpart M_Voluntary In-Use Testing

    Source: 64 FR 15254, Mar. 30, 1999, unless otherwisenoted.



Sec. 90.1201  Applicability.

    The provisions of this subpart from Sec. 90.1201 throughSec. 
90.1249 are applicable to all handheld and nonhandheldPhase 2 engines 
subject to the provisions of subpart A of this part.

[64 FR 15254, Mar. 30, 1999, as amended at 65 FR 24314, Apr.25, 2000]



Sec. 90.1202  Definitions.

    For the purposes of this subpart, except as otherwise provided,the 
definitions in subparts A and C of this part apply to thissubpart.



Sec. 90.1203  Voluntary Manufacturer In-Use Testing Program.

    (a) Manufacturers may elect to participate in the voluntary in-
usetesting program by notifying the Administrator in writing of 
theirintent to conduct emissions testing on in-use engines prior to 
thebeginning of each model year. The notification must include a list 
ofengine families the manufacturer has selected to include in thetesting 
program.
    (b) Each engine family included in the voluntary in-use 
testingprogram is exempted from the Production Line Testing 
requirementsaccording to Sec. 90.701(c) for two model years, the 
currentmodel year and the subsequent model year. Manufacturers may 
onlyinclude up to twenty percent of their eligible engine families in 
thisin-use testing program each model year.
    (c) The manufacturer must randomly select or procure a minimum 
ofthree engines, from each family included in the voluntary program, 
foremissions testing. These three engines may be selected or 
procuredfrom:
    (1) Existing consumer or independently owned fleets,
    (2) Existing manufacturer owned fleets, or
    (3) The production line and placed into either manufacturer 
orconsumer owned fleets. Although a minimum of three engines must 
beemissions tested from each engine family in this testing program, 
amanufacturer may elect to emissions test more than three engines 
perfamily.
    (d) The manufacturer or the manufacturer's designee must:
    (1) Age the selected engines in equipment representing the top 
50percent, by production, of available equipment for the engine family.
    (2) Age the selected engines to at least 75 percent of eachengines' 
useful life as determined pursuant to Sec. 90.105.
    (3) Age the engine/equipment combination in actual fieldconditions 
encountered with typical use of the equipment as describedin the owner's 
manual or other literature sold with the equipment orengine.
    (e) Documents obtained in the procurement or aging process must 
bemaintained as required in Sec. 90.121.
    (f) The manufacturer must complete testing within three 
calendaryears from the time they notified the Administrator of their 
intent toparticipate in the voluntary in-use testing program, unless 
otherwiseapproved by the Administrator; the Administrator will give 
suchapproval upon acceptance of documentation demonstrating 
thatappropriate in-use testing will take a longer period of time.



Sec. 90.1204  Maintenance, aging and testing of engines.

    (a) Prior to aging the engines and after appropriatestabilization, 
manufacturers may optionally conduct emissions testingon the engines, 
according to the test procedures described in subpartE of this part. 
These tests to serve as baseline references.
    (b) Manufacturers must obtain information regarding theaccumulated 
usage, maintenance, operating conditions, and storage ofthe test 
engines.
    (1) The manufacturer may take reasonable measures to assure thatthe 
engines and equipment were properly used and maintained during thefield 
aging process, but additional maintenance to that indicated inthe owners 
manual or other literature sold with the equipment orengine is 
prohibited.

[[Page 297]]

    (2) Unless otherwise approved by the Administrator, once 
amanufacturer begins aging and/or testing an engine, the manufacturermay 
not remove that engine from the selected sample unless that 
engineexperiences catastrophic mechanical failure or safety 
concernsrequiring major engine repair.
    (c) The manufacturer may perform minimal set-to-spec maintenanceon 
components of a test engine that are not subject to parameteradjustment. 
Components subject to parameter adjustment must be sealedand tamperproof 
and may not be adjusted for testing. Unless otherwiseapproved by the 
Administrator, maintenance to any test engine mayinclude only that which 
is listed in the owner's instructions forengines with the amount of 
service and age of the test engine.
    (d) After aging each engine to at least 75 percent of the 
engine'suseful life as determined pursuant to Sec. 90.105, at leastone 
valid emission test, according to the test procedure outlined insubpart 
E of this part, is required for each test engine. Data fromother 
emission testing or performance testing performed on a testengine must 
be supplied to EPA, and may not be used for the purpose ofdetermining 
the need for maintenance on an engine.
    (e) Documents obtained in the procurement, aging, maintenance, 
ortesting process must be maintained as required inSec. 90.121.



Sec. 90.1205  In-use test program reporting requirements.

    (a) The manufacturer shall submit to the Administrator withinninety 
(90) days of completion of testing for a given model year'sengines, all 
emission testing results generated from the voluntary in-use testing 
program. The following information must be reported foreach test engine:
    (1) Engine family;
    (2) Model;
    (3) Application;
    (4) Engine serial number;
    (5) Date of manufacture;
    (6) Hours of use;
    (7) Date and time of each test attempt;
    (8) Results (if any) of each test attempt;
    (9) Schedules, descriptions and justifications of all 
maintenanceand/or adjustments performed;
    (10) Schedules, descriptions and justifications of allmodifications 
and/or repairs; and
    (11) A listing of any test engines that were deleted from theaging 
process or testing process and technical justifications tosupport the 
deletion.
    (b) All testing reports and requests for approvals made under 
thissubpart shall be addressed to: Manager, Engine Compliance 
ProgramsGroup (6403-J), U.S. Environmental Protection Agency,Washington, 
DC 20460.



Sec. 90.1206  [Reserved]



Sec. 90.1207  Entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions under this subpart, EPA 
enforcementofficers or their authorized representatives, upon 
presentation ofcredentials, shall be permitted entry, during operating 
hours, intoany of the following places:
    (1) Any facility where engines undergo or are undergoing 
aging,maintenance, repair, preparation for aging, selection for aging 
oremission testing.
    (2) Any facility where records or documents related to any 
ofactivities described in paragraph (a)(1) of this section are kept.
    (3) Any facility where any engine that is being tested or aged,was 
tested or aged or will be tested or aged is present.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers or EPA 
authorizedrepresentatives are authorized to perform those activities set 
forthin Sec. 90.705 (b) and also to inspect and make copies ofrecords 
related to engine aging (service accumulation) andmaintenance.
    (c) The provisions of Sec. 90.705(c), (d), (e), (f) and(g) also 
apply to entry and access under this subpart.

[[Page 298]]



Sec. Sec. 90.1208-90.1249  [Reserved]



PART 91_CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES--Table of Contents




                            Subpart A_General

Sec.
91.1 Applicability.
91.2 Applicable date.
91.3 Definitions.
91.4 Acronyms and abbreviations.
91.5 Table and figure numbering; position.
91.6 Reference materials.
91.7 Treatment of confidential information.

        Subpart B_Emission Standards and Certification Provisions

91.101 Applicability.
91.102 Definitions.
91.103 Averaging, banking, and trading of exhaust emissioncredits.
91.104 Exhaust emission standards for outboard and personalwatercraft 
          engines.
91.105 Useful life period, recall, and warranty periods.
91.106 Certificate of conformity.
91.107 Application for certification.
91.108 Certification.
91.109 Requirement of certification--closed crankcase.
91.110 Requirement of certification--prohibitedcontrols.
91.111 Requirement of certification--prohibition ofdefeat devices.
91.112 Requirement of certification--adjustableparameters.
91.113 Requirement of certification--emission controlinformation label 
          and engine identification number.
91.114 Requirement of certification--supplyingproduction engines upon 
          request.
91.115 Certification procedure--determining enginepower and engine 
          families.
91.116 Certification procedure--test engine selection.
91.117 Certification procedure--service accumulation.
91.118 Certification procedure--testing.
91.119 Certification procedure--use of special testprocedures.
91.120 Compliance with Family Emission Limits over usefullife.
91.121 Certification procedure--recordkeeping.
91.122 Amending the application and certificate ofconformity.
91.123 Denial, revocation of certificate of conformity.
91.124 Request for hearing.
91.125 Hearing procedures.
91.126 Right of entry and access.

          Subpart C_Averaging, Banking, and Trading Provisions

91.201 Applicability.
91.202 Definitions.
91.203 General provisions.
91.204 Averaging.
91.205 Banking.
91.206 Trading.
91.207 Credit calculation and manufacturer compliance withemission 
          standards.
91.208 Certification.
91.209 Maintenance of records.
91.210 End-of-year and final reports.
91.211 Notice of opportunity for hearing.

              Subpart D_Emission Test Equipment Provisions

91.301 Scope; applicability.
91.302 Definitions.
91.303 Acronyms and abbreviations.
91.304 Test equipment overview.
91.305 Dynamometer specifications and calibration accuracy.
91.306 Dynamometer torque cell calibration.
91.307 Engine cooling system.
91.308 Lubricating oil and test fuel.
91.309 Engine intake air temperature measurement.
91.310 Engine intake air humidity measurement.
91.311 Test conditions.
91.312 Analytical gases.
91.313 Analyzers required.
91.314 Analyzer accuracy and specifications.
91.315 Analyzer initial calibration.
91.316 Hydrocarbon analyzer calibration.
91.317 Carbon monoxide analyzer calibration.
91.318 Oxides of nitrogen analyzer calibration.
91.319 NOX converter check.
91.320 Carbon dioxide analyzer calibration.
91.321 NDIR analyzer calibration.
91.322 Calibration of other equipment.
91.323 Analyzer bench checks.
91.324 Analyzer leakage check.
91.325 Analyzer interference checks.
91.326 Pre- and post-test analyzer calibration.
91.327 Sampling system requirements.
91.328 Measurement equipment accuracy/calibration frequencytable.
91.329 Catalyst thermal stress test.

Appendix A to Subpart D of Part 91--Figures
Appendix B to Subpart D of Part 91--Figures

                Subpart E_Gaseous Exhaust Test Procedures

91.401 Scope; applicability.
91.402 Definitions.
91.403 Symbols and abbreviations.
91.404 Test procedure overview.

[[Page 299]]

91.405 Recorded information.
91.406 Engine parameters to be measured and recorded.
91.407 Engine inlet and exhaust systems.
91.408 Pre-test procedures.
91.409 Engine dynamometer test run.
91.410 Engine test cycle.
91.411 Post-test analyzer procedures.
91.412 Data logging.
91.413 Exhaust sample procedure--gaseous components.
91.414 Raw gaseous exhaust sampling and analytical systemdescription.
91.415 Raw gaseous sampling procedures.
91.416 Intake air flow measurement specifications.
91.417 Fuel flow measurement specifications.
91.418 Data evaluation for gaseous emissions.
91.419 Raw emission sampling calculations.
91.420 CVS concept of exhaust gas sampling system.
91.421 Dilute gaseous exhaust sampling and analytical systemdescription.
91.423 Exhaust gas analytical system; CVS grab sample.
91.424 Dilute sampling procedure--CVS calibration.
91.425 CVS calibration frequency.
91.426 Dilute emission sampling calculations.
91.427 Catalyst thermal stress resistance evaluation.

Appendix A to Subpart E of Part 91--Tables
Appendix B to Subpart E of Part 91--Figures

         Subpart F_Manufacturer Production Line Testing Program

91.501 Applicability.
91.502 Definitions.
91.503 Production line testing by the manufacturer.
91.504 Maintenance of records; submittal of information.
91.505 Right of entry and access.
91.506 Engine sample selection.
91.507 Test procedures.
91.508 Cumulative Sum (CumSum) procedure.
91.509 Calculation and reporting of test results.
91.510 Compliance with criteria for production line testing.
91.511 Suspension and revocation of certificates ofconformity.
91.512 Request for public hearing.
91.513 Administrative procedures for public hearing.
91.514 Hearing procedures.
91.515 Appeal of hearing decision.
91.516 Treatment of confidential information.

          Subpart G_Selective Enforcement Auditing Regulations

91.601 Applicability.
91.602 Definitions.
91.603 Applicability of part 91, subpart F.
91.604 Test orders.
91.605 Testing by the Administrator.
91.606 Sample selection.
91.607 Test procedures.
91.608 Compliance with acceptable quality level and passingand failing 
          criteria for selective enforcement audits.

Appendix A to Subpart G of Part 91--Sampling Plansfor Selective 
          Enforcement Auditing of Marine Engines

          Subpart H_Importation of Nonconforming Marine Engines

91.701 Applicability.
91.702 Definitions.
91.703 Admission.
91.704 Exemptions and exclusions.
91.705 Prohibited acts; penalties.
91.706 Treatment of confidential information.
91.707 Importation of partially complete engines.

             Subpart I_In-Use Testing and Recall Regulations

91.801 Applicability.
91.802 Definitions.
91.803 Manufacturer in-use testing program.
91.804 Maintenance, procurement and testing of in-useengines.
91.805 In-use test program reporting requirements.
91.806 Voluntary emissions recall.

   Subpart J_Emission-Related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program

91.901 Applicability.
91.902 Definitions.
91.903 Applicability to part 85, subpart T.
91.904 Voluntary emission recall.
91.905 Reports, voluntary recall plan filing, recordretention.
91.906 Responsibility under other legal provisionspreserved.
91.907 Disclaimer of production warranty applicability.

         Subpart K_Exclusion and Exemption of Marine SI Engines

91.1001 Applicability.
91.1002 Definitions.
91.1003 Exclusions based on section 216(10) of the Act.
91.1004 Who may request an exemption.
91.1005 Testing exemption.

[[Page 300]]

91.1006 Manufacturer-owned exemption andprecertification exemption.
91.1007 Display exemption.
91.1008 National security exemption.
91.1009 Export exemptions.
91.1010 Granting of exemptions.
91.1011 Submission of exemption requests.
91.1012 Treatment of confidential information.

       Subpart L_Prohibited Acts and General EnforcementProvisions

91.1101 Applicability.
91.1102 Definitions.
91.1103 Prohibited acts.
91.1104 General enforcement provisions.
91.1105 Injunction proceedings for prohibited acts.
91.1106 Penalties.
91.1107 Warranty provisions.
91.1108 In-use compliance provisions.

        Subpart M_Emission Warranty and Maintenance Instructions

91.1201 Applicability.
91.1202 Definitions.
91.1203 Emission warranty, warranty period.
91.1204 Furnishing of maintenance and use instructions toultimate 
          purchaser.

         Subpart N_In-Use Credit Program for New Marine Engines

91.1301 Applicability.
91.1302 Definitions.
91.1303 General provisions.
91.1304 Averaging.
91.1305 Banking.
91.1306 Trading.
91.1307 Credit calculation.
91.1308 Maintenance of records.
91.1309 Reporting requirements.
91.1310 Notice of opportunity for hearing.

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

    Source: 61 FR 52102, Oct. 4, 1996, unless otherwisenoted.

    Effective Date Note: At 61 FR 52102, Oct. 4, 1996, part91 was added, 
effective Dec. 3, 1996. This part contains informationcollection and 
recordkeeping requirements that will not becomeeffective until approval 
has been given by the Office of Managementand Budget.



                            Subpart A_General



Sec. 91.1  Applicability.

    (a) This part and all its subparts apply to marine spark-
ignitionengines used to propel marine vessels as defined in the 
GeneralProvisions of the United States Code, 1 U.S.C.3 (1992), 
unlessotherwise indicated.
    (b) Sterndrive and inboard engines are exempt from this part.
    (c) Existing technology OB/PWC are exempt fromSec. 91.112 and 
subparts D, E, F, G, I(Sec. Sec. 91.803 through 91.805), J, M and N 
throughmodel year 2003.



Sec. 91.2  Applicable date.

    This part applies to marine spark-ignition engines beginning withthe 
1998 model year, except where otherwise specified.



Sec. 91.3  Definitions.

    The following definitions apply to this part 91. All terms 
notdefined herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401et seq.
    Adjustable parameter means any device, system, or element ofdesign 
which is physically capable of being adjusted (including thosewhich are 
difficult to access) and which, if adjusted, may affectemissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the EnvironmentalProtection 
Agency or his or her authorized representative.
    Amphibious vehicle means a vehicle with wheels or tracksthat is 
designed primarily for operation on land and secondarily foroperation in 
water.
    Auxiliary emission control device means any element ofdesign that 
senses temperature, engine speed, engine RPM, transmissiongear, or any 
other parameter for the purpose of activating,modulating, delaying, or 
deactivating the operation of any part of theemission control system.
    Certification means, with respect to new SI marine engines,obtaining 
a certificate of conformity for an engine family complyingwith the 
marine SI engine emission standards and requirementsspecified in this 
part.
    Emission control system means any device, system, or elementof 
design which controls or reduces the emission of substances from 
anengine.
    Engine as used in this part, refers to marine SI engine.

[[Page 301]]

    Engine family means a group of engines, as specified inSec. 91.115.
    EPA enforcement officer means any officer, employee, orauthorized 
representative of the U.S. Environmental Protection Agencyso designated 
in writing by the Administrator (or by his or herdesignee).
    Exhaust emissions means matter emitted into the atmospherefrom any 
opening downstream from the exhaust port of a marine engine.
    Existing technology OB/PWC means an outboard engine or apersonal 
watercraft engine which was in production for the 1997 or anyprevious 
model years and that did not utilize newer technologies suchas four-
stroke technology, direct-injection two-stroke technology,catalyst 
technology, or other technology used to comply with emissionstandards 
which the Administrator determines is a new type of OB/PWCtechnology.
    Family Emission Limit (FEL) means an emission levelthat is declared 
by the manufacturer to serve in lieu of an emissionstandard for 
certification and for the averaging, banking, and tradingprogram. A FEL 
must be expressed to the same number of decimal placesas the applicable 
emission standard.
    Fuel system means all components involved in the transport,metering, 
and mixture of the fuel from the fuel tank to the combustionchamber(s) 
including the following: Fuel tank, fuel tank cap, fuelpump, fuel lines, 
oil injection metering system, carburetor or fuelinjection components, 
and all fuel system vents.
    Gross power means the power measured at the crankshaft orits 
equivalent (for outboards, the power may be measured at thepropeller 
shaft), the engine being equipped only with the standardaccessories 
(such as oil pumps, coolant pumps, and so forth) necessaryfor its 
operation on the test bed.
    Identification number means a unique specification (forexample, 
model number/serial number combination) which allows aparticular marine 
SI engine to be distinguished from other similarengines.
    Inboard engine means a four stroke marine SI engine that isdesigned 
such that the propeller shaft penetrates the hull of themarine vessel 
while the engine and the remainder of the drive unit isinternal to the 
hull of the marine vessel.
    Marine engine means a nonroad engine that is installed orintended to 
be installed on a marine vessel. This includes a portableauxiliary 
marine engine only if its fueling, cooling, or exhaustsystem is an 
integral part of the vessel. There are two kinds ofmarine engines:
    (1) Propulsion marine engine means a marine engine that moves 
avessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used 
forpropulsion.
    Marine engine manufacturer means any person engaged in 
themanufacturing or assembling of new marine SI engines or the 
importingof such engines for resale, or who acts for and is under the 
controlof any such person in connection with the distribution of 
suchengines. A marine SI engine manufacturer does not include any 
dealerwith respect to new marine SI engines received by such person 
incommerce.
    Marine spark-ignition engine means a spark-ignition marineengine 
that propels a marine vessel.
    Marine vessel has the meaning given in 1 U.S.C. 3, exceptthat it 
does not include amphibious vehicles. The definition in 1U.S.C. 3 very 
broadly includes every craft capable of being used as ameans of 
transportation on water.
    Marine vessel manufacturer means any person engaged in 
themanufacturing or assembling of new marine vessels or importing 
suchmarine vessels for resale, or who acts for and is under the control 
ofany such person in connection with the distribution of such vehicles.A 
marine vessel manufacturer does not include any dealer with respectto 
new marine vessels received by such person in commerce.
    Model year means the manufacturer's annual new modelproduction 
period which includes January 1 of the calendar year forwhich the model 
year is named, ends no later than December 31 of thecalendar year, and 
does not

[[Page 302]]

begin earlier than January 2 of theprevious calendar year. Where a 
manufacturer has no annual new modelproduction period, model year means 
the calendar year.
    New, for purposes of this part, means a nonroad engine,nonroad 
vehicle, or nonroad equipment the equitable or legal title towhich has 
never been transferred to an ultimate purchaser. Where theequitable or 
legal title to the engine, vehicle or equipment is nottransferred to an 
ultimate purchaser until after the engine, vehicle,or equipment is 
placed into service, then the engine, vehicle, orequipment will no 
longer be new after it is placed into service. Anonroad engine, vehicle, 
or equipment is placed into service when itis used for its functional 
purposes. With respect to imported nonroadengines, nonroad vehicles, or 
nonroad equipment, the term``new'' means an engine, vehicle, or piece of 
equipmentthat is not covered by a certificate of conformity issued under 
thispart at the time of importation, and that is manufactured after 
theeffective date of a regulation issued under this part which 
isapplicable to such engine, vehicle, or equipment, or which would 
beapplicable to such engine, vehicle, or equipment had it 
beenmanufactured for importation into the United States.
    Nonroad engine has the meaning as defined in 40 CFR 89.2.
    Nonroad vehicle has the meaning as defined in 40 CFR 89.2.
    Nonroad equipment has the meaning as defined in 40 CFR 89.2.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during 
whichpersonnel other than custodial personnel are at work in the 
vicinityof the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which 
anassembly line is in operation or all times during which 
testing,maintenance, service accumulation, production or compilation 
ofrecords, or any other procedure or activity related to 
certificationtesting, to translation of designs from the test stage to 
theproduction stage, or to engine manufacture or assembly is 
beingcarried out in a facility.
    Outboard engine is a marine SI engine that, when properlymounted on 
a marine vessel in the position to operate, houses theengine and drive 
unit external to the hull of the marine vessel.
    Personal watercraft engine (PWC) is a marine SI engine thatdoes not 
meet the definition of outboard engine, inboard engine orsterndrive 
engine, except that the Administrator in his or herdiscretion may 
classify a PWC as an inboard or sterndrive engine if itis comparable in 
technology and emissions to an inboard or sterndriveengine.
    Presentation of credentials means the display of thedocument 
designating a person as an EPA enforcement officer or EPAauthorized 
representative.
    Scheduled maintenance means any adjustment, repair, 
removal,disassembly, cleaning, or replacement of components or 
systemsrequired by the manufacturer to be performed on a periodic basis 
toprevent part failure or marine vessel or engine malfunction, or 
thoseactions anticipated as necessary to correct an overt indication 
ofmalfunction or failure for which periodic maintenance is 
notappropriate.
    Spark-ignition means relating to a gasoline-fueled engine orany 
other type of engine with a spark plug (or other sparking device)and 
with operating characteristics significantly similar to thetheoretical 
Otto combustion cycle. Spark-ignition engines usually usea throttle to 
regulate intake air flow to control power during normaloperation.
    Sterndrive engine means a four stroke marine SI engine thatis 
designed such that the drive unit is external to the hull of themarine 
vessel, while the engine is internal to the hull of the marinevessel.
    Test engine means the engine or group of engines that amanufacturer 
uses during certification, production line and in-usetesting to 
determine compliance with emission standards.
    Ultimate purchaser means, with respect to any new marine SIengine 
the first person who in good faith purchases such new marine SIengine 
for purposes other than resale.

[[Page 303]]

    United States means the States, the District ofColumbia, the 
Commonwealth of Puerto Rico, the Commonwealth of theNorthern Mariana 
Islands, Guam, American Samoa, and the U.S. VirginIslands.
    Used solely for competition means exhibiting features thatare not 
easily removed and that would render its use other than incompetition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or partis 
covered by the warranty provisions.

[61 FR 52102, Oct. 4, 1996, as amended at 67 FR 68340, Nov. 8,2002; 70 
FR 40451, July 13, 2005]



Sec. 91.4  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to this part 91.

AECD--Auxiliary emission control device
ASME--American Society of Mechanical Engineers
ASTM--American Society for Testing and Materials
CAA--Clean Air Act
CAAA--Clean Air Act Amendments of 1990
CLD--chemiluminescent detector
CO--Carbon monoxide
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FEL--Family Emission Limit
g/kw-hr--grams per kilowatt hour
HC--hydrocarbons
HCLD--heated chemiluminescent detector
HFID--heated flame ionization detector
ICI--Independent Commercial Importer
MY--Model Year
NDIR--non-dispersive infrared analyzer
NIST--National Institute for Standards and Testing
NO--Nitric oxide
NO2--Nitrogen dioxide
NOX--Oxides of nitrogen
OB--Outboard engine
O2--Oxygen
OEM--Original engine manufacturer
PMD--paramagnetic detector
PWC--personal watercraft
RPM--revolutions per minute
SAE--Society of Automotive Engineers
SEA--Selective Enforcement Auditing
SI--Spark-ignition
U.S.C.--United States Code
VOC--Volatile organic compounds
ZROD--zirconium dioxide sensor



Sec. 91.5  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end ofthe 
subpart. Tables are numbered consecutively by order of appearancein the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end ofthe 
subpart. Figures are numbered consecutively by order or appearancein the 
appendix. The figure title will indicate the topic.



Sec. 91.6  Reference materials.

    (a) Incorporation by reference. The documents in paragraph(b) of 
this section have been incorporated by reference. Theincorporation by 
reference was approved by the Director of the FederalRegister in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copiesmay be 
inspected at U.S. EPA, OAR, Air and Radiation Docket andInformation 
Center, 401 M St., SW., Washington, DC 20460, or at theNational Archives 
and Records Administration (NARA). For informationon the availability of 
this material at NARA, call202-741-6030, or go to:http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (b) The following paragraphs and tables set forth the materialthat 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth materialfrom the 
American Society for Testing and Materials which has beenincorporated by 
reference. The first column lists the number and nameof the material. 
The second column lists the section(s) of this part,other than Sec. 
91.6, in which the matter is referenced. Thesecond column is presented 
for information only and may not be allinclusive. Copies of these 
materials may be obtained from AmericanSociety for Testing and 
Materials, 1916 Race St., Philadelphia, PA19103.

------------------------------------------------------------------------
   Document number and name             40 CFRpart 91 reference
------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for   Appendix A to Subpart D.
     Distillation of
     PetroleumProducts.
ASTM D323-90:
    Standard Test Method for   Appendix A to Subpart D.
     Vapor Pressure of
     Petroleum Products(Reid
     Method).

[[Page 304]]

 
ASTM D1319-93:
    Standard Test Method for   Appendix A to Subpart D.
     Hydrocarbon Types in
     Liquid PetroleumProducts
     by Fluorescent Indicator
     Adsorption.
ASTM D2622-92:
    Standard Test Method for   Appendix A to Subpart D.
     Sulfur in Petroleum
     Products by X-
     RaySpectrometry.
ASTM D2699-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor Fuels bythe
     Research Method.
ASTM D2700-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor andAviation Fuels
     by the Motor Method.
ASTM D3231-89:
    Standard Test Method for   Appendix A toSubpart D.
     Phosphorus in Gasoline.
ASTM D3606-92:
    Standard Test Method for   Appendix Ato Subpart D.
     Determination of Benzene
     and Toluene inFinished
     Motor and Aviation
     Gasoline by Gas
     Chromatography.
ASTM E29-93a:
    Standard Practice for      91.207; 91.120; 91.509;91.1307.
     Using Significant Digits
     in Test Data toDetermine
     Conformance with
     Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth materialfrom the 
Society of Automotive Engineers which has been incorporatedby reference. 
The first column lists the number and name of thematerial. The second 
column lists the section(s) of this part, otherthan Sec. 91.7, in which 
the matter is referenced. Thesecond column is presented for information 
only and may not be allinclusive. Copies of these materials may be 
obtained from Society ofAutomotive Engineers International, 400 
Commonwealth Dr., Warrendale,PA 15096-0001.

------------------------------------------------------------------------
   Document number and name             40 CFR part 91 reference
------------------------------------------------------------------------
SAE J1228/ISO 8665 November    91.104,91.115; 91.118; 91.207; 91.1307.
 1991 Small Craft-Marine
 PropulsionEngine and Systems-
 Power Measurements and
 Declarations.
SAE J1930 June 1993            91.113.
 Electrical/Electronic
 Systems DiagnosticTerms,
 Definitions, Abbreviations
 and Acronyms.
SAE Paper 770141 Optimization  91.316
 of a Flame Ionization
 Detector forDetermination of
 Hydrocarbon in Diluted
 Automotive Exhausts, Glenn
 D.Reschke, 1977.
------------------------------------------------------------------------



Sec. 91.7  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of theinformation 
submitted pursuant to this part is entitled toconfidential treatment as 
provided by part 2, subpart B, of thischapter.
    (b) Any claim of confidentiality must accompany the information 
atthe time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpartis 
confidential, a manufacturer must indicate clearly the items 
ofinformation claimed confidential by marking, circling, 
bracketing,stamping, or otherwise specifying the confidential 
information.Furthermore, EPA requests, but does not require, that the 
submitteralso provide a second copy of its submittal from which 
allconfidential information has been deleted. If a need arises 
topublicly release nonconfidential information, EPA will assume that 
thesubmitter has accurately deleted the confidential information 
fromthis second copy.
    (d) If a claim is made that some or all of the informationsubmitted 
pursuant to this subpart is entitled to confidentialtreatment, the 
information covered by that confidentiality claim willbe disclosed by 
the Administrator only to the extent and by means ofthe procedures set 
forth in part 2, subpart B, of this chapter.
    (e) Information provided without a claim of confidentiality at 
thetime of submission may be made available to the public by EPA 
withoutfurther notice to the submitter, in accordance withSec. 
2.204(c)(2)(i)(A) of this chapter.

[[Page 305]]



        Subpart B_Emission Standards and CertificationProvisions



Sec. 91.101  Applicability.

    The requirements of this subpart B are applicable to all newmarine 
spark-ignition engines subject to the provisions of subpart Aof this 
part 91.



Sec. 91.102  Definitions.

    The definitions in subpart A of this part 91 apply to thissubpart. 
All terms not defined herein or in subpart A of this parthave the 
meaning given them in the Act.



Sec. 91.103  Averaging, banking, and trading of exhaust emission credits.

    Regulations regarding averaging, banking, and trading 
provisionsalong with applicable recordkeeping requirements are found in 
subpartC of this part.



Sec. 91.104  Exhaust emission standards for outboard and personal watercraftengines.

    (a) New marine spark-ignition outboard and personal 
watercraftengines for use in the U.S. must meet the following exhaust 
emissionstandards for HC+NOX. The exhaust emission standard 
foreach model year is provided below. It is also used as input to 
thecalculation procedure in Sec. 91.207 to determine compliancewith the 
corporate average HC+NOX exhaust emissionstandard.

                          Hydrocarbon Plus Oxides of Nitrogen ExhaustEmission Standards
                                            [grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
                                                                                     P 4.3 kW HC+NOX
                      Model year                         P< 4.3 kW HC+NOX emission   emission standard by model
                                                          standard by model year                year
----------------------------------------------------------------------------------------------------------------
1998..................................................                     278.00   (0.917 x (151 + 557/P\0.9\))
                                                                                     + 2.44
1999..................................................                     253.00   (0.833 x (151 + 557/P\0.9\))
                                                                                     + 2.89
2000..................................................                     228.00   (0.750 x (151 + 557/P\0.9\))
                                                                                     + 3.33
2001..................................................                     204.00   (0.667 x (151 + 557/P\0.9\))
                                                                                     + 3.78
2002..................................................                     179.00   (0.583 x (151 + 557/P\0.9\))
                                                                                     + 4.22
2003..................................................                     155.00   (0.500 x (151 + 557/P\0.9\))
                                                                                     + 4.67
2004..................................................                     130.00   (0.417 x (151 + 557/P\0.9\))
                                                                                     + 5.11
2005..................................................                     105.00   (0.333 x (151 + 557/P\0.9\))
                                                                                     + 5.56
2006 and later........................................                      81.00   (0.250 x (151 + 557/
                                                                                     P\0.9\))+ 6.00
----------------------------------------------------------------------------------------------------------------

where:

P = the average power of an engine family in kW (sales weighted).The 
power of each configuration is the rated output in kilowatts 
asdetermined by SAE J1228. This procedure has been incorporated 
byreference. See Sec. 91.6.

    (b) Exhaust emissions are measured using the procedures set forthin 
subpart E of this part.
    (c) Manufacturers must designate a Family Emission Limit (FEL) 
forHC+NOX for every engine family. The FEL may be equal tothe 
emission standard in paragraph (a) of this section. The FELestablished 
through certification serves as the emission standard forthe engine 
family and emissions may not exceed the FEL levels forHC+NOX 
for all engines sold in the engine family, fortheir useful life.
    (d) A manufacturer must comply with a corporate 
averageHC+NOX emission standard as determined in accordance 
withsubpart C Sec. 91.207.



Sec. 91.105  Useful life period, recall, and warranty periods.

    (a) The useful life for PWC engines is a period of 350 hours 
ofoperation or 5 years of use, whichever first occurs. The useful 
lifefor Outboard marine spark-ignition engines is a period of 350 hours 
ofoperation or 10 years of use, whichever first occurs.
    (b) PWC engines are subject to recall testing for a period of 
350hours of operation or 5 years of use, whichever first occurs. 
Outboardmarine spark-ignition engines are subject to recall testing for 
aperiod of 350 hours of operation or 10 years of use, whichever 
firstoccurs. However, for purposes of this part only, if the 
Administratorshould issue a nonconformity determination, then only those 
enginesthat are within the

[[Page 306]]

useful life as of the date of thenonconformity determination are subject 
to recall repair requirements.
    (c) Warranty periods are set out in subpart M of this part.



Sec. 91.106  Certificate of conformity.

    (a) Every manufacturer of a new marine SI engine produced duringor 
after the 1998 model year for outboard engines and the 1999 modelyear 
for PWC engines, must obtain a certificate of conformity coveringeach 
engine family. The certificate of conformity must be obtainedfrom the 
Administrator prior to selling, offering for sale,introducing into 
commerce, or importing into the United States the newmarine SI engine.
    (b) The certificate of conformity is valid for the model year 
forwhich it is designated.



Sec. 91.107  Application for certification.

    (a) For each engine family, the engine manufacturer must submit 
tothe Administrator a completed application for a certificate 
ofconformity, except that with respect to an existing technology OB/
PWCengine a manufacturer may, in lieu of providing such 
application,submit to the Administrator summary testing and other 
information asdetermined by the Administrator.
    (b) The application must be approved and signed by the 
authorizedrepresentative of the manufacturer.
    (c) The application must be updated and corrected by amendment 
asprovided in Sec. 91.122 to accurately reflect themanufacturer's 
production.
    (d) Required content. Each application must include the 
followinginformation:
    (1) A description of the basic engine design including, but 
notlimited to, the engine family specifications;
    (2) An explanation of how the emission control system 
operates,including a detailed description of all emission control 
systemcomponents (detailed component calibrations are not required to 
beincluded, however they must be provided if requested), each 
auxiliaryemission control device (AECD), and all fuel system components 
to beinstalled on any production or test engine(s);
    (3) Proposed test fleet selection and the rationale for the 
testfleet selection;
    (4) Special or alternative test procedures, if applicable;
    (5) The description of the operating cycle and the 
serviceaccumulation period necessary to break in the test engine(s) 
andstabilize emission levels and any maintenance scheduled;
    (6) A description of all adjustable operating parameters,including 
the following:
    (i) The nominal or recommended setting and the associatedproduction 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used toestablish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops usedto 
establish the physically adjustable range of each parameter, or anyother 
means used to inhibit adjustment, are effective in preventingadjustment 
of parameters to settings outside the manufacturer'sintended physically 
adjustable ranges on in-use engines;
    (7) Regarding the averaging, banking, and trading provisions, 
theinformation specified in Sec. 91.208;
    (8) The proposed maintenance and use instructions the 
manufacturerwill furnish to the ultimate purchaser of each new engine 
and theproposed emission control label;
    (9) All test data, for HC, CO and NOX. obtained by 
themanufacturer on each test engine;
    (10) A statement that the test engine(s), as described in 
themanufacturer's application for certification, has been tested 
inaccordance with the applicable test procedures, utilizing the fuelsand 
equipment described in the application, and that on the basis ofsuch 
tests the engine(s) conforms to the requirements of this part;and
    (11) An unconditional statement certifying that all engines in 
theengine family comply with all requirements of this part and the 
CleanAir Act.

[[Page 307]]

    (e) At the Administrator's request, the manufacturer mustsupply such 
additional information as may be required to evaluate theapplication 
including, but not limited to, projected marine SI engineproduction.
    (f) (1) The Administrator may modify the information 
submissionrequirements of paragraph (d) of this section, provided 
theinformation specified therein is maintained by the engine 
manufactureras required by Sec. 91.121, and amended, updated, 
orcorrected as necessary.
    (2) For the purposes of this paragraph, Sec. 91.121(a)(1) includes 
all information specified in paragraph (d) of thissection whether or not 
such information is actually submitted to theAdministrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's recordsat 
any time.



Sec. 91.108  Certification.

    (a) If, after a review of the manufacturer's submittedapplication, 
or with respect to an existing technology OB/PWC enginemanufacturer's 
summary information submitted pursuant toSec. 91.107(a), information 
obtained from any inspection,and such other information as the 
Administrator may require, theAdministrator determines that the 
application or summary informationis complete and that the engine family 
meets the requirements of thispart and the Clean Air Act, the 
Administrator shall issue acertificate of conformity for the engine 
family.
    (b) The Administrator shall give a written explanation 
whencertification is denied. The manufacturer may request a hearing on 
adenial. (See Sec. 91.124 for procedure.)



Sec. 91.109  Requirement of certification--closed crankcase.

    (a) An engine's crankcase must be closed.
    (b) For purposes of this section, crankcase means thehousing for the 
crankshaft and other related internal parts.



Sec. 91.110  Requirement of certification--prohibited controls.

    (a) An engine may not be equipped with an emission control 
device,system, or element of design for the purpose of complying 
withemission standards if such device, system, or element of design 
willcause or contribute to an unreasonable risk to public health, 
welfare,or safety in its operation or function.
    (b) You may not design your engines with emission-control 
devices,systems, or elements of design that cause or contribute to 
anunreasonable risk to public health, welfare, or safety whileoperating. 
For example, this would apply if the engine emits a noxiousor toxic 
substance it would otherwise not emit that contributes tosuch an 
unreasonable risk.

[61 FR 52102, Oct. 4, 1996, as amended at 67 FR 68340, Nov. 8,2002]



Sec. 91.111  Requirement of certification--prohibition of defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, defeat device means anydevice, 
system, or element of design which senses operation outsidenormal 
emission test conditions and reduces emission controleffectiveness.
    (1) Defeat device includes any auxiliary emission control 
device(AECD) that reduces the effectiveness of the emission control 
systemunder conditions which may reasonably be expected to be 
encountered innormal operation and use, unless such conditions are 
included in thetest procedure.
    (2) Defeat device does not include such items which either 
operateonly during engine starting or are necessary to protect the 
engine (orvehicle or equipment in which it is installed) against damage 
oraccident during its operation.



Sec. 91.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply withall 
requirements of this subpart for any adjustment in the 
physicallyavailable range.

[[Page 308]]

    (b) An operating parameter is not considered adjustable if itis 
permanently sealed by the manufacturer or otherwise not 
normallyaccessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters beset 
to any specification within the adjustable range duringcertification, 
production line testing, selective enforcement auditingor any in-use 
testing to determine compliance with the requirements ofthis part.



Sec. 91.113  Requirement of certification--emission control informationlabel and engine identification number.

    (a) The engine manufacturer must affix at the time of manufacturea 
permanent and legible label identifying each engine. The label mustmeet 
the following requirements:
    (1) Be attached in such a manner that it cannot be removed 
withoutdestroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal 
engineoperation and not normally requiring replacement during engine 
life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average 
personafter the engine is installed in the marine vessel.
    (b) If the marine vessel obscures the label on the engine, themarine 
vessel manufacturer must attach a supplemental label so thatthis label 
is readily visible to the average person. The supplementallabel must:
    (1) Be attached in such a manner that it cannot be removed 
withoutdestroying or defacing the label;
    (2) Be secured to a marine vessel part necessary for normaloperation 
and not normally requiring replacement during the marinevessel life; and
    (3) Be identical to the label which was obscured.
    (c) The label must contain the following information:
    (1) The heading ``Emission Control Information;''
    (2) The full corporate name and trademark of the enginemanufacturer;
    (3) The statement, ``This (vessel's engine or engine, asapplicable) 
is certified to operate on (specify operatingfuel(s));''
    (4) Identification of the Exhaust Emission Control 
System(Abbreviations may be used and must conform to the nomenclature 
andabbreviations provided in SAE J1930. This procedure has 
beenincorporated by reference. See Sec. 91.6.;
    (5) All engine lubricant requirements;
    (6) date of manufacture [day(optional), month and year];
    (7) The statement ``This engine conforms to [model year]U.S. EPA 
regulations for marine SI engines.'';
    (8) Family Emission Limits (FELs);
    (9) EPA standardized engine family designation;
    (10) Engine displacement [in cubic centimeters]; and
    (11) Advertised power;
    (12) Engine tuneup specifications and adjustments. These 
shouldindicate the proper transmission position during tuneup, 
andaccessories, if any, that should be in operation;
    (13) Fuel requirements;
    (14) Other information concerning proper maintenance and use 
orindicating compliance or noncompliance with other standards may 
beindicated on the label.
    (d) If there is insufficient space on the engine to accommodate 
alabel including all the information required in paragraph (c) of 
thissection, the manufacturer may delete or alter the label as 
indicatedin this paragraph. The information deleted from the label must 
appearin the owner's manual.
    (1) Exclude the information required in paragraphs (c) (3), (4),and 
(5) of this section. The fuel or lubricant may be specifiedelsewhere on 
the equipment.
    (2) Exclude the information required by paragraph (c)(6) of 
thissection, if the date the engine was manufactured is stamped on 
theengine.
    (3) For existing technology OB/PWC only, exclude the 
informationrequired by paragraphs (c) (10), (11), (13), and (14) of this 
section.
    (e) The Administrator may, upon request, waive or modify the 
labelcontent requirements of paragraphs (c) and (d) of this 
section,provided that the intent of such requirements is met.
    (f) Engine Identification Number. Each engine must have a legible,

[[Page 309]]

unique engine identification number permanently affixed to orengraved on 
the engine.



Sec. 91.114  Requirement of certification--supplying production enginesupon request.

    Upon the Administrator's request, the manufacturer must supply 
areasonable number of production engines for testing and 
evaluation.These engines must be representative of typical production 
andsupplied for testing at such time and place and for such 
reasonableperiods as the Administrator may require.



Sec. 91.115  Certification procedure--determining engine power and enginefamilies.

    (a) Engine power must be calculated using SAE J1228. Thisprocedure 
has been incorporated by reference. SeeSec. 91.6.
    (b) The manufacturer's product line must be divided into 
enginefamilies as specified by paragraph (c) of this section, comprised 
ofengines expected to have similar emission characteristics 
throughouttheir useful life periods.
    (c) To be classed in the same engine family, engines must 
beidentical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, borespacings, 
and so forth);
    (4) The number of cylinders;
    (5) The number of catalytic converters, location; volume, 
andcomposition; and
    (6) The thermal reactor characteristics.
    (d) At the manufacturer's request, engines identical in all 
therespects listed in paragraph (c) of this section may be 
furtherdivided into different engine families if the Administrator 
determinesthat they may be expected to have different emission 
characteristics.This determination is based upon the consideration of 
features suchas:
    (1) The bore and stroke;
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppetvalve, 
reed valve, rotary valve, and so forth);
    (4) The intake and exhaust valve or port sizes, as applicable;
    (5) The fuel system;
    (6) The exhaust system; and
    (7) The method of air aspiration.
    (e) Where engines are of a type which cannot be divided intoengine 
families based upon the criteria listed in paragraph (c) ofthis section, 
the Administrator shall establish families for thoseengines based upon 
the features most related to their emissioncharacteristics.
    (f) Upon a showing by the manufacturer that the 
emissioncharacteristics during the useful life are expected to be 
similar,engines differing in one or more of the characteristics in 
paragraph(c) of this section may be grouped in the same engine family.
    (g) Upon a showing by the manufacturer that the 
emissioncharacteristics during the useful life are expected to be 
dissimilar,engines identical in all the characteristics in paragraph (c) 
of thissection may be divided into separate engine families.



Sec. 91.116  Certification procedure--test engine selection.

    (a) The manufacturer must select, from each engine family, a 
testengine of a configuration that the manufacturer deems to be 
mostlikely to exceed the Family Emission Limit (FEL).
    (b) At the manufacturer's option, the criterion for selecting 
theworst case engine may be that engine configuration which has 
thehighest weighted brake-specific fuel consumption over the 
appropriateengine test cycle.
    (c) The test engine must be constructed to be representative 
ofproduction engines.



Sec. 91.117  Certification procedure--service accumulation.

    (a)(1) Any engine required to be tested underSec. 91.118 must be 
operated with all emission controlsystems operating properly for a 
period sufficient to stabilizeemissions prior to such testing.
    (2) A manufacturer may elect to consider emission levels 
asstabilized when the test engine has accumulated 12 hours of service.
    (b) No maintenance, other than recommended lubrication and 
filterchanges, may be performed during

[[Page 310]]

service accumulation without theAdministrator's approval.
    (c) Service accumulation is to be performed in a manner using 
goodengineering judgment to ensure that emissions are representative 
ofproduction engines.
    (d) The manufacturer must maintain, and provide to theAdministrator 
if requested, records stating the rationale forselecting a service 
accumulation period different than 12 hours andrecords describing the 
method used to accumulate hours on the testengine(s).



Sec. 91.118  Certification procedure--testing.

    (a) Manufacturer testing. The manufacturer must test thetest engine 
using the specified test procedures and appropriate testcycle. All test 
results must be reported to the Administrator.
    (1) The test procedures to be used are detailed in subpart E ofthis 
part.
    (2) Emission test equipment provisions are described in subpart Dof 
this part.
    (b) Administrator testing. (1) The Administrator may requirethat any 
one or more of the test engines be submitted to theAdministrator, at 
such place or places as the Administrator maydesignate, for the purposes 
of conducting emission tests. TheAdministrator may specify that testing 
will be conducted at themanufacturer's facility, in which case 
instrumentation and equipmentspecified by the Administrator must be made 
available by themanufacturer for test operations. Any testing conducted 
at amanufacturer's facility must be scheduled by the manufacturer 
aspromptly as possible.
    (2)(i) Whenever the Administrator conducts a test on a testengine, 
the results of that test will, unless subsequently invalidatedby the 
Administrator, comprise the official data for the engine andthe 
manufacturer's data will not be used in determining compliancewith the 
Family Emission Limit (FEL).
    (ii) Prior to the performance of such a test, the Administratormay 
adjust or cause to be adjusted any adjustable parameter of thetest 
engine which the Administrator has determined to be subject toadjustment 
for testing, to any setting within the physicallyadjustable range of 
that parameter, to determine whether the engineconforms to the 
applicable Family Emission Limit (FEL).
    (iii) For those engine parameters which the Administrator has 
notdetermined to be subject to adjustment for testing, the test 
enginepresented to the Administrator for testing will be calibrated 
withinthe production tolerances applicable to the manufacturer 
specificationshown on the engine label, as specified in the application 
forcertification.
    (c) Use of carryover test data. In lieu of testing, themanufacturer 
may submit, with the Administrator's approval, emissiontest data used to 
certify substantially similar engine families inprevious years. This 
``carryover'' test data is onlyallowable if the data shows the test 
engine would fully comply withthe applicable Family Emission Limit 
(FEL).
    (d) Scheduled maintenance during testing. No scheduledmaintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1)Manufacturers may 
not perform any unscheduled engine, emission controlsystem, or fuel 
system adjustment, repair, removal, disassembly,cleaning, or replacement 
on a test engine without the advance approvalof the Administrator.
    (2) The Administrator may approve such maintenance if:
    (i) A preliminary determination has been made that a part failureor 
system malfunction, or the repair of such failure or malfunction,does 
not render the engine unrepresentative of engines in use, anddoes not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenanceor 
repairs is indicated by an overt malfunction such as persistentmisfire, 
engine stall, overheating, fluid leakage, or loss of oilpressure.
    (3) Emission measurements may not be used as a means ofdetermining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify theextent 
of any overt indication of part failure (for example, misfire,stall), or 
an activation of an audible and/or visual signal, prior

[[Page 311]]

to the manufacturer performing any maintenance related to suchovert 
indication or signal.
    (5) Unless approved by the Administrator prior to use, 
enginemanufacturers may not use any equipment, instruments, or tools 
toidentify malfunctioning, maladjusted, or defective engine 
componentsunless the same or equivalent equipment, instruments, or tools 
areavailable at dealerships and other service outlets and are used 
inconjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or 
systemmalfunction occurrence and/or repair rendered the 
engineunrepresentative of production engines, the engine may not be used 
asa test engine.
    (7) Unless waived by the Administrator, complete emission testsare 
required before and after any engine maintenance which mayreasonably be 
expected to affect emissions.
    (f) Engine failure. A manufacturer may not use as a testengine any 
engine which incurs major mechanical failure necessitatingdisassembly of 
the engine. This prohibition does not apply to failureswhich occur after 
completion of the service accumulation period.
    (g) In lieu of providing or generating emission data under 
thissection for existing technology, the Administrator may allow 
themanufacturer to demonstrate (on the basis of previous emission 
tests,development tests, or other testing information) that the engine 
willconform with the applicable FEL.
    (h)(1) Manufacturers may select an FEL for existing technologyOB/PWC 
through:
    (i) Model year 2000 based on the function 151+557/P \0.9\where 
P=average power of an engine family in kW (sales weighted). Thepower of 
each configuration is the rated output in kilowatts asdetermined by SAE 
J1228. (This procedure has been incorporated byreference. See Sec. 
91.6). The certificate of conformitywould be conditioned by requirements 
that the manufacturer submit testdata, as determined appropriate by the 
Administrator underSec. 91.118(h) by the end of model year 2000; that 
the FELis revised and approved by EPA to reflect the test data; that 
thecredits associated with the engine family are recalculated based 
onthe difference between the old FEL and the new FEL; and that the 
newFEL applies to all engines covered by the certificate of 
conformity;or
    (ii) Model year 2003 based on good engineering judgement.
    (2) Upon request by the manufacturer, the Administrator has 
thediscretion to extend the time period set forth in paragraph (h)(1) 
ofthis section for a specific engine family up to model year 2005 if 
theAdministrator determines that an engine family will be phased out 
ofU.S. production by model year 2005. As a condition to being 
grantedsuch an extension, the manufacturer must discontinue U.S. 
productionaccording to the schedule upon which the Administrator based 
theextension. Failure to do so by the manufacturer will void 
thecertificate of conformity ab initio.
    (i) A manufacturer request under paragraph (h)(2) of this 
sectionmust be in writing and must apply to a specific engine family. 
Therequest must identify the engine family designation, the 
rationalesupporting the FEL choice, the type of information used as a 
basis forthe FEL (e.g., previous emission tests, development tests), 
thespecific source of the information including when the information 
wasgenerated, the schedule for phasing the engine family out of 
U.S.production, and any other information the Administrator may require.



Sec. 91.119  Certification procedure--use of special test procedures.

    (a) Use of special test procedures by EPA. The Administratormay 
establish special test procedures for any engine that theAdministrator 
determines is not susceptible to satisfactory testingunder the specified 
test procedures set forth in subpart E of thispart.
    (b) Use of alternative test procedures by an enginemanufacturer. (1) 
A manufacturer may elect to use an alternativetest procedure provided 
that it yields results equivalent to theresults from the specified test 
procedure in subpart E, its use isapproved in advance by the 
Administrator, and the basis for equivalentresults with the specified 
test

[[Page 312]]

procedures is fully described inthe manufacturer's application.
    (2) An engine manufacturer electing to use alternate testprocedures 
is solely responsible for the results obtained. TheAdministrator may 
reject data generated under test procedures which donot correlate with 
data generated under the specified procedures.
    (3) [Reserved]
    (4) Where we specify mandatory compliance with the procedures of40 
CFR part 1065, manufacturers may elect to use the proceduresspecified in 
40 CFR part 86, subpart N, as an alternate test procedurewithout advance 
approval by the Administrator.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.120  Compliance with Family Emission Limits over useful life.

    (a) If all test engines representing an engine family haveemissions, 
as determined in paragraph (c)(3)(iii) of this section,less than or 
equal to the applicable Family Emission Limit (FEL) foreach pollutant as 
determined according to Sec. 91.104 (c),that family complies with the 
Family Emission Limit .
    (b) If any test engine representing an engine family has 
emissions(as determined in paragraph (c)(3)(iii) of this section, 
greater thanthe applicable Family Emission Limit for any pollutant as 
determinedaccording to Sec. 91.104(c), that family will be deemed notin 
compliance with the Family Emission Limits.
    (c)(1) The engine Family Emission Limits (FELs) apply to 
theemissions of engines for their useful lives.
    (2) Since emission control efficiency generally decreases with 
theaccumulation of service on the engine, deterioration factors must 
beused in combination with emission data engine test results as thebasis 
for determining compliance with the standards.
    (3)(i) Paragraph (c)(3)(ii) of this section describes theprocedure 
for determining compliance of an engine with family emissionlimits, 
based on deterioration factors supplied by the manufacturer.
    (ii) Separate exhaust emission deterioration factors, determinedby 
the manufacturer, must be supplied for each engine family. 
Thedeterioration factors must be applied as follows:
    (A) For marine spark-ignition engines not utilizing 
aftertreatmenttechnology (for example, catalytic converters), the 
official exhaustemission results for each emission data engine at the 
selected testpoint are adjusted by adding the appropriate deterioration 
factor tothe results. However, if the deterioration factor supplied by 
themanufacturer is less than zero, it is zero for the purposes of 
thisparagraph.
    (B) For marine spark-ignition engines utilizing 
aftertreatmenttechnology (for example, catalytic converters), the 
official exhaustemission results for each emission data engine at the 
selected testpoint are adjusted by multiplying the results by the 
appropriatedeterioration factor. However, if the deterioration factor 
supplied bythe manufacturer is less than one, it is one for the purposes 
of thisparagraph.
    (iii) The emission values to compare with the Family EmissionLimits 
(FELs) are the adjusted emission values of paragraph (c)(3)(ii)of this 
section, rounded to the same number of significant figures ascontained 
in the applicable standard in accordance with ASTM E29-93a, for each 
emission data engine. This procedure has beenincorporated by reference. 
See Sec. 91.6.



Sec. 91.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following 
adequatelyorganized records:
    (1) Copies of all applications and summary information, 
asapplicable, filed with the Administrator;
    (2) A copy of all data obtained through the production line andin-
use testing programs; and
    (3) A detailed history of each test engine used for 
certificationincluding the following:
    (i) A description of the test engine's construction, including 
ageneral description of the origin and buildup of the engine, stepstaken 
to insure that it is representative of production engines,description of 
components specially built for the test engine, and theorigin and 
description of all emission-related components;

[[Page 313]]

    (ii) A description of the method used for engine 
serviceaccumulation, including date(s) and the number of hours 
accumulated;
    (iii) A description of all maintenance, including 
modifications,parts changes, and other servicing performed, and the 
date(s), andreason(s) for such maintenance;
    (iv) A description of all emission tests performed, includingroutine 
and standard test documentation, as specified in subpart E ofthis part, 
date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine 
oremission control performance, giving the date and time of each and 
thereason(s) for the test; and
    (vi) A description of any significant event(s) affecting theengine 
during the period covered by the history of the test engine butnot 
described by an entry under one of the previous paragraphs of 
thissection.
    (b) Routine emission test data, such as test cell temperature 
andrelative humidity at start and finish of test and raw emission 
resultsfrom each mode or test phase, must be retained for a period of 
oneyear after issuance of all certificates of conformity to which 
theyrelate. All other information specified in paragraph (a) of 
thissection must be retained for a period of eight years after issuance 
ofall certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, 
providedthat, at the Administrator's request, organized, written records 
inEnglish are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's 
request,copies of any engine maintenance instructions or explanations 
issuedby the manufacturer.



Sec. 91.122  Amending the application and certificate of conformity.

    (a) The marine engine manufacturer must notify the Administrator
    (1) When either an engine is to be added to a certificate 
ofconformity or changes are to be made to a product line covered by 
acertificate of conformity which may potentially affect 
emissions,emissions durability, an emission related part, or the 
durability ofan emission related part. Notification occurs when the 
manufacturersubmits and EPA receives a request to amend the original 
applicationprior to either producing such engines or making such changes 
to aproduct line. For existing technology OB/PWC engines 
only,notification may occur periodically but must occur at least on 
aquarterly basis and may be submitted summarily as determined by 
theAdministrator.
    (2) When an FEL is changed for an engine family, as allowed 
underSec. 91.203. Notification occurs when the manufacturersubmits and 
EPA receives a request to amend the original application.The 
manufacturer may not change an FEL unless compliance underSec. 
91.207(b) is maintained through the use of the revisedFEL.
    (b) The request to amend the engine manufacturer's 
existingcertificate of conformity must include the following 
information:
    (1) A full description of the engine to be added or the change(s)to 
be made in production;
    (2) The manufacturer's proposed test engine selection(s); and
    (3) Engineering evaluations or reasons why the original testengine 
or FEL is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer toperform 
tests on an engine representing the engine to be added orchanged.
    (d) Decision by Administrator.
    (1) Based on the submitted request and data derived from suchtesting 
as the Administrator may require or conduct, the Administratormust 
determine whether the proposed addition or change would still becovered 
by the certificate of conformity then in effect.
    (2) If the Administrator determines that the new or changedengine(s) 
meets the requirements of this subpart and the Act, theappropriate 
certificate of conformity will be amended.
    (3) If the Administrator determines that the new or changedengines 
would not be covered by the certificate of conformity, theAdministrator 
must provide a written explanation to the enginemanufacturer of his or 
her decision not to amend the certificate. The

[[Page 314]]

manufacturer may request a hearing on a denial. SeeSec. 91.125.
    (4) If the Administrator determines that the revised FEL meets 
therequirements of this subpart and the Act, the appropriate 
certificateof conformity will be amended to reflect the revised FEL. 
Thecertificate of conformity is revised conditional upon compliance 
underSec. 91.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes inor 
additions to production engines concurrently with requesting toamend the 
application or certification of conformity as set forth inparagraph (b) 
of this section, if the manufacturer determines that allaffected engines 
will still meet applicable Family Emission Limits(FELs). The engine 
manufacturer must supply supporting documentation,test data, and 
engineering evaluations as appropriate to support itsdetermination.
    (2) If, after a review, the Administrator determines 
additionaltesting is required, the engine manufacturer must provide 
requiredtest data within 30 days or cease production of the affected 
engines.
    (3) If the Administrator determines that the affected engines donot 
meet applicable requirements, the Administrator will notify theengine 
manufacturer to cease production of the affected engines.



Sec. 91.123  Denial, revocation of certificate of conformity.

    (a) If, after review of the engine manufacturer's 
application,request for certification, information obtained from any 
inspection,and any other information the Administrator may require, 
theAdministrator determines that the test engine or engine family 
doesnot meet applicable requirements or the Family Emission Limit 
(FEL),the Administrator will notify the manufacturer in writing, 
settingforth the basis for this determination.
    (b) Notwithstanding the fact that engines described in 
theapplication may comply with all other requirements of this 
subpart,the Administrator may deny the issuance of or revoke a 
previouslyissued certificate of conformity if the Administrator finds 
any one ofthe following infractions to be substantial:
    (1) The engine manufacturer submits false or incompleteinformation;
    (2) The engine manufacturer denies an EPA enforcement officer orEPA 
authorized representative the opportunity to conduct 
authorizedinspections;
    (3) The engine manufacturer fails to supply requested informationor 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data whichit 
submits or otherwise circumvents the intent of the Act or thispart;
    (5) The engine manufacturer denies an EPA enforcement officer orEPA 
authorized representative reasonable assistance (as defined inSec. 
91.505); or
    (6) The engine manufacturer fails to initiate, perform or 
submitrequired data generated from the production line and in-use 
testingprograms to EPA.
    (c) If any manufacturer knowingly commits an infraction specifiedin 
paragraph (b)(1), (b)(4), or (b)(6) of this section or knowinglycommits 
any other fraudulent act which results in the issuance of acertificate 
of conformity, or fails to comply with the conditionsspecified in 
Sec. Sec. 91.203(f), 91.206(d), 91.208(c) or91.209(g), the 
Administrator may void such certificate abinitio.
    (d) When the Administrator denies, revokes, or voids abinitio a 
certificate of conformity, the engine manufacturer will beprovided a 
written determination. The manufacturer may request ahearing on the 
Administrator's decision.
    (e) Any revocation of a certificate of conformity extends nofurther 
than to forbid the introduction into commerce of those enginespreviously 
covered by the certificate which are still in thepossession of the 
engine manufacturer, except in cases of such fraudor other misconduct 
that makes the certificate void ab initio.



Sec. 91.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on 
theAdministrator's denial or revocation or voiding ab initio of 
acertificate of conformity.

[[Page 315]]

    (b) The engine manufacturer's request must be filed within 30days of 
the Administrator's decision, be in writing, and set forth 
themanufacturer's objections to the Administrator's decision and data 
tosupport the objections.
    (c) If, after review of the request and supporting data, 
theAdministrator finds that the request raises a substantial and 
factualissue, the Administrator will grant the engine manufacturer's 
requestfor a hearing.



Sec. 91.125  Hearing procedures.

    The hearing procedures set forth in Sec. Sec. 91.513,91.514, and 
91.515 apply to this subpart.



Sec. 91.126  Right of entry and access.

    Any engine manufacturer who has applied for certification of a 
newengine or engine family subject to certification testing under 
thissubpart must admit or cause to be admitted to any 
applicablefacilities during operating hours any EPA enforcement officer 
or EPAauthorized representative as provided in Sec. 91.505.



          Subpart C_Averaging, Banking, and Trading Provisions



Sec. 91.201  Applicability.

    The requirements of this subpart C are applicable to all 
marinespark-ignition engines subject to the provisions of subpart A of 
thispart 91.



Sec. 91.202  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart:
    Averaging for marine SI engines means the exchange ofemission 
credits among engine families within a given manufacturer'sproduct line.
    Banking means the retention of marine SI engine emissioncredits by 
the manufacturer generating the emission credits for use infuture model 
year averaging or trading as permitted by theseregulations.
    Eligible sales means marine SI engines sold for purposes ofbeing 
used in the United States and include any engine introduced intocommerce 
in the U.S. to be sold for use in the U.S.
    Emission credits represent the amount of emission reductionor 
exceedance, by a marine SI engine family, below or above theapplicable 
emission standard, respectively. Emission reductions belowthe standard 
are considered as ``positive credits,'' whileemission exceedances above 
the standard are considered as``negative credits.'' In addition, 
``projectedcredits'' refer to emission credits based on the 
projectedapplicable production/sales volume of the engine 
family.``Reserved credits'' are emission credits generated withina model 
year waiting to be reported to EPA at the end of the modelyear. ``Actual 
credits'' refer to emission credits basedon actual applicable 
production/sales volume as contained in the end-of-year reports 
submitted to EPA. Some or all of these credits may berevoked if EPA 
review of the end-of-year reports or any subsequentaudit action(s) 
uncovers problems or errors.
    Point of first retail sale means the point at which theengine is 
first sold directly to an end user. Generally, this point isthe retail 
boat or engine dealer. If the engine is sold first to aboat or vessel 
manufacturer for installation in a boat or vessel, theboat or vessel 
manufacturer may be the point of first retail sale ifthe boat or vessel 
manufacturer can determine if the engine is or isnot exported once they 
have sold the boat or vessel. If the boat orvessel manufacturer cannot 
determine if the engine is or is notexported once they have sold the 
boat or vessel, the engine ispresumed to not be exported, unless the 
engine manufacturer candemonstrate otherwise. Engine manufacturers must 
include engines intheir average if the engine is exported and 
subsequently imported intothe United States installed in a boat or 
vessel and introduced intoUnited States commerce.
    Trading means the exchange of marine engine emission creditsbetween 
manufacturers.

[[Page 316]]



Sec. 91.203  General provisions.

    (a) The certification averaging, banking, and trading provisionsfor 
hydrocarbon plus oxides of nitrogen emissions from eligible marineSI 
engines are described in this subpart.
    (b) A marine SI engine family must use the averaging provisionsand 
may use the banking and trading provisions for hydrocarbon plusoxides of 
nitrogen emissions if it is subject to regulation undersubpart B of this 
part with certain exceptions specified in paragraph(c) of this section.
    (c) Manufacturers of marine SI engines may not use the banking 
andtrading provisions for new marine SI engines:
    (1) Which are exported, or
    (2) Which are subject to state engine emission standards unlessthe 
manufacturer demonstrates to the Administrator that inclusion ofthese 
engines in banking and trading is appropriate.
    (d) A manufacturer may certify marine SI engine families at 
FamilyEmission Limits (FELs) above or below the applicable 
emissionstandard, provided the summation of the manufacturer's 
projectedbalance of all credit transactions in a given model year is 
greaterthan or equal to zero, as determined under Sec. 91.207.
    (1) A manufacturer of an engine family with an FEL exceeding 
theapplicable emission standard must obtain positive emission 
creditssufficient to address the associated credit shortfall via 
averaging,banking, or trading.
    (2) An engine family with an FEL below the applicable 
emissionstandard may generate positive emission credits for 
averaging,banking, or trading, or a combination thereof. Emission 
credits maynot be used to offset an engine family's emissions that 
exceed itsapplicable FEL. Credits may not be used to remedy 
nonconformitydetermined by a production line testing, a Selective 
Enforcement Audit(SEA) or by recall (in-use) testing. However, in the 
case of amanufacturer production line testing or SEA failure, credits 
may beused to allow subsequent production of engines for the family 
inquestion if the manufacturer elects to recertify to a higher FEL. 
Inthe case of production line testing a manufacturer may revise the 
FELbased upon production line testing results obtained under subpart 
Fand upon Administrator approval pursuant to Sec. 91.122(d).
    (e) Credits generated in a given model year may be used in 
thefollowing three model years. Credits not used by the end of the 
thirdmodel year after being generated are forfeited. Credits generated 
inone model year may not be used for prior model years, unless 
allowedunder Sec. 91.207.
    (f) Manufacturers must demonstrate compliance under the 
averaging,banking, and trading provisions for a particular model year by 
270days after the model year. An engine family generating 
negativecredits for which the manufacturer does not obtain or generate 
anadequate number of positive credits from the same or previous 
modelyears will violate the conditions of the certificate of 
conformity.The certificate of conformity may be voided ab initio 
pursuantto Sec. 91.123 for this engine family.



Sec. 91.204  Averaging.

    (a) Negative credits from engine families with FELs above 
theapplicable emission standard must be offset by positive credits 
fromengine families below the applicable emission standard, as 
allowedunder the provisions of this subpart. Averaging of credits in 
thismanner is used to determine compliance under Sec. 91.207(b).
    (b) For model years through 2000, outboard credits may not besummed 
with personal watercraft credits, or vice versa, for purposesof 
compliance under Sec. 91.207, except manufacturers may,at their 
discretion, include personal watercraft credits with outboardcredits 
upon demonstration to the satisfaction of the Administratorthat the 
personal watercraft engine is installed in a hybrid vesselthat is 
smaller than a typical sterndrive or inboard vessel and largerthan a 
typical personal watercraft. For model year 2001 and later,manufacturers 
must sum credits generated from outboard and personalwatercraft to 
determine compliance under Sec. 91.207.
    (c) Credits used in averaging may be obtained from creditsgenerated 
by another engine family as allowed underSec. 91.204(b), in the same 
model year, credits banked inthe three previous

[[Page 317]]

model years, or credits obtained throughtrading.



Sec. 91.205  Banking.

    (a) A manufacturer of a marine SI engine family with an FEL belowthe 
applicable emission standard for a given model year may bankcredits in 
that model year for use in averaging and trading in thefollowing three 
model years. Negative credits must be banked accordingto the 
requirements under Sec. 91.207(c). Positive creditsnot used within the 
three model years after they are banked areforfeited.
    (1) Early banking. (i) For outboard engines in model year (MY)1997, 
a manufacturer may bank positive emission credits if thefollowing 
conditions are met: the manufacturer certifies their entiremarine 
outboard engine product line for MY 1997 under the emissionstandards 
applicable to MY 1998, the manufacturer demonstratescompliance with the 
corporate average standard underSec. 91.207(b), and the sum of positive 
and negative creditsunder Sec. 91.207 generates positive emission 
credits, whenthe following formula is used for purposes of the 
applicable standardin Sec. 91.207(a). The number of credits that may be 
bankedunder this paragraph is the number of positive emission 
creditsgenerated under the provisions of the preceding sentence. 
Marineengines certified under the provisions of this paragraph are 
subjectto all of the requirements of this part.

      Hydrocarbon Plus Oxides of Nitrogen ExhaustEmission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                            P<4.3 kW
                             HC+NOX
       Model year           Emission        P4.3 kW HC+NOX
                           standard by   emission standard by model year
                           model year
------------------------------------------------------------------------
1997...................             276  (0.959 x (151 + 557/
                                          P\0.9\)+1.22)
------------------------------------------------------------------------

    (ii) For personal watercraft engines in model year 1998, 
amanufacturer may bank positive emission credits if the 
followingconditions are met: The manufacturer certifies their entire 
marinepersonal watercraft engine product line for MY 1998 under the 
emissionstandards applicable to 1998 model year outboard engine 
emissionstandards, the manufacturer demonstrates compliance with the 
corporateaverage standard under Sec. 91.207(b), and the sum ofpositive 
and negative credits under Sec. 91.207 generatespositive emission 
credits, when the following formula is used forpurposes of the 
applicable standard Sec. 91.207(a). Thenumber of credits that may be 
banked under this paragraph is thenumber of positive emission credits 
generated under the provisions ofthe preceding sentence. Marine engines 
certified under the provisionsof this paragraph are subject to all of 
the requirements of this part.

      Hydrocarbon Plus Oxides of Nitrogen ExhaustEmission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                            P<4.3 kW
                             HC+NOX
       Model year           emission        P 4.3 kW HC+NOX
                           standard by   emission standard by model year
                           model year
------------------------------------------------------------------------
1998...................             276  (0.959 x (151 + 557/P\0.9\)) +
                                          1.22)
------------------------------------------------------------------------

    (iii) For personal watercraft in model year 1997, a manufacturermay 
bank positive emission credits if the following conditions aremet: the 
manufacturer certifies their entire marine personalwatercraft engine 
product line for MY 1997 under the emissionstandards specified in the 
formula below for PWC, the manufacturerdemonstrates compliance with the 
corporate average standard underSec. 91.207(b), and the sum of positive 
and negative creditsunder Sec. 91.207 generates positive emission 
credits, whenthe following formula is used for purposes of the 
applicable standardin Sec. 91.207(a). The number of credits that may be 
bankedunder this paragraph is the number of positive emission 
creditsgenerated under the provisions of the preceding sentence. 
Marineengines certified under the provisions of this paragraph are 
subjectto all of the requirements of this part.

      Hydrocarbon Plus Oxides of Nitrogen ExhaustEmission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                            P<4.3 kW
                             HC+NOX
       Model year           emission        P 4.3 kW HC+NOX
                           standard by   emission standard by model year
                           model year
------------------------------------------------------------------------
1997...................             276  (0.959 x (151 + 557/P\0.9\) +
                                          1.22)
------------------------------------------------------------------------

    (b) A manufacturer may bank actual credits only after the end ofthe 
model

[[Page 318]]

year and after EPA has reviewed the manufacturer's end-of-year reports. 
During the model year and before submittal of theend-of-year report, 
credits originally designated in the certificationprocess for banking 
will be considered reserved and may beredesignated for trading or 
averaging in the end-of-year report andfinal report.
    (c) Credits declared for banking from the previous model year 
thathave not been reviewed by EPA may be used in averaging or 
tradingtransactions. However, such credits may be revoked at a later 
timefollowing EPA review of the end-of-year report or any subsequent 
auditactions.



Sec. 91.206  Trading.

    (a) A marine SI engine manufacturer may exchange emission 
creditswith other marine SI engine manufacturers in trading. These 
creditsmust be used in the same averaging set as generated.
    (b) Credits for trading can be obtained from credits banked in 
thethree previous model years or credits generated during the model 
yearof the trading transaction. Traded credits expire if they are not 
usedin averaging within three model years following the model year 
inwhich they were generated.
    (c) Traded credits can be used for averaging, banking, or 
furthertrading transactions.
    (d) In the event of a negative credit balance resulting from 
atransaction, both the buyer and the seller are liable, except in 
casesinvolving fraud. Certificates of all engine families participating 
ina negative trade may be voided ab initio pursuant toSec. 91.123.



Sec. 91.207  Credit calculation and manufacturer compliance with emissionstandards.

    (a) For each engine family, certification emission credits(positive 
or negative) are to be calculated according to the followingequation and 
rounded, in accordance with ASTM E29-93a, to thenearest gram. ASTM E29-
93a has been incorporated by reference.See Sec. 91.6. Consistent units 
are to be used throughoutthe equation. The following equation is used to 
determine hydrocarbonplus oxides of nitrogen credit status for an engine 
family, whethergenerating positive credits or negative credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.004

Where:

sales = the number of eligible sales tracked to the point of firstretail 
sale for the given engine family during the model year. Annualproduction 
projections are used to project credit availability forinitial 
certification. Actual sales volume is used in determiningactual credits 
for end of-year compliance determination.
t = time in model years
Power = the average power of an engine family in kW (salesweighted). The 
power of each configuration is the rated output inkilowatts as 
determined by SAE J1228. This procedure has beenincorporated by 
reference. See Sec. 91.6.
max actual life = maximum actual life specific to the power ratingand 
the application; max actual life = 2[mu]life
[mu]life = average actual life in years, specific tothe power 
rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.054

Power = as defined above.
[mu]use = mean use in hours per year. For outboardengines,
[mu]use = 34.8 hrs /yr. For personal 
watercraft,[mu]use = 77.3 hrs/yr;
S(t) = cumulative fraction survived at time t;
S(t) = exp -(0.906 x t/[micro]life)\4\
STD = the current and applicable marine SI engine emissionstandard in 
grams per kilowatt hour as determined inSec. 91.104.

[[Page 319]]

FEL = the family emission limit for the engine family ingrams per 
kilowatt hour.

    (b) Manufacturer compliance with the corporate average 
emissionstandard is determined on a corporate average basis at the end 
of eachmodel year. A manufacturer is in compliance when the sum of 
positiveand negative emission credits it holds is greater than or equal 
tozero, except as allowed under paragraph (c) of this section.
    (c)(1) Outboard Engines
    (i) For model year 1998, a manufacturer is in compliance when thesum 
of positive credits and negative emission credits it holds isgreater 
than or equal to zero, including
    (A) Credits generated in MY 1998 exceed 70% of the negativecredits 
generated in MY 1998. The remaining negative credits (up to30% of the 
total negative credits) must be banked.
    (ii) For model year 1999, a manufacturer is in compliance when 
thepositive credits generated in MY 1999 exceed the sum of 80% of 
thenegative credits generated in MY 1999 and the negative credits 
bankedin 1998. The remaining negative credits (up to 20% of the 
totalnegative credits) must be banked.
    (iii) For model year 2000, a manufacturer is in compliance whenthe 
sum of positive and negative emission credits it holds is greaterthan or 
equal to zero, including
    (A) The negative credits banked in MY 1998 and MY 1999 and
    (B) Any adjustments to credits based on adjustments to FELsresulting 
from requirements in Sec. 91.118(h)(1)(i).Manufacturers do not have to 
recalculate compliance for model years1998 and 1999.
    (2) Personal watercraft engines. (i) For model year 1999, 
amanufacturer is in compliance when the positive credits generated inMY 
1999 exceed 50% of the negative credits generated in MY 1999. 
Theremaining negative credits (up to 50% of the total negative 
credits)must be banked.
    (ii) For model year 2000, a manufacturer is in compliance when 
thesum of positive and negative emission credits it holds is greater 
thanor equal to zero, including
    (A) The negative credits banked in 1999 and
    (B) Any adjustments to credits based on adjustments to FELsresulting 
from requirements in Sec. 91.118(h)(1)(i).Manufacturers do not have to 
recalculate compliance for model year1999.
    (d) When a manufacturer is not in compliance, the manufacturerwill 
be in violation of these regulations and EPA may void abinitio the 
certificates of engine families for which themanufacturer has not 
obtained sufficient positive emission creditspursuant to Sec. 91.123.
    (e) Notwithstanding other provisions of this part, for model 
yearsbeginning with model year 2000, a manufacturer having a 
negativecredit balance during one period of up to four consecutive model 
yearswill not be considered to be in noncompliance in a model year 
upthrough and including model year 2009 where:
    (1) The manufacturer has a total annual production of enginessubject 
to regulation under this part of 1000 or less; and
    (2) The manufacturer has not had a negative credit balance otherthan 
in three immediately preceding model years, except as permittedunder 
paragraph (c) of this section; and
    (3) The FEL(s) of the family or families produced by themanufacturer 
are no higher than those of the corresponding family orfamilies in the 
previous model year, except as allowed by theAdministrator; and
    (4) The manufacturer submits a plan acceptable to theAdministrator 
for coming into compliance with future model yearstandards including 
projected dates for the introduction or increasedsales of engine 
families having FEL(s) below standard and projecteddates for 
discontinuing or reducing sales of engines having FEL(s)above standard; 
and
    (5)(i) The manufacturer has set its FEL using emission testing 
asprescribed in subpart E of this part; or
    (ii) The manufacturer has set its FEL based on the equation 
andprovisions of Sec. 91.118(h)(1)(i) and the manufacturer hassubmitted 
appropriate test data and revised its FEL(s) andrecalculated its credits 
pursuant to the provisions ofSec. 91.118(h)(1); or

[[Page 320]]

    (iii) The manufacturer has set its FEL using good 
engineeringjudgement, pursuant to the provisions of Sec. 
91.118(h)(1)(ii) and (h)(2).

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24314, Apr.25, 2000; 70 
FR 40451, July 13, 2005]



Sec. 91.208  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Submit a statement that the engines for which certification 
isrequested will not, to the best of the manufacturer's belief, causethe 
manufacturer to be in noncompliance under Sec. 91.207(b)when all 
credits are calculated for all the manufacturer's enginefamilies.
    (2) Declare an FEL for each engine family for HC plusNOX. 
The FEL must have the same number of significantdigits as the emission 
standard.
    (3) Indicate the projected number of credits generated/needed 
forthis family; the projected applicable production/sales volume, 
byquarter; and the values required to calculate credits as given inSec. 
91.207.
    (4) Submit calculations in accordance with Sec. 91.207of projected 
emission credits (positive or negative) based onquarterly production 
projections for each family.
    (5)(i) If the engine family is projected to have negative 
emissioncredits, state specifically the source (manufacturer/engine 
family orreserved) of the credits necessary to offset the credit 
deficitaccording to quarterly projected production.
    (ii) If the engine family is projected to generate credits, 
statespecifically (manufacturer/engine family or reserved) where 
thequarterly projected credits will be applied.
    (b) All certificates issued are conditional upon 
manufacturercompliance with the provisions of this subpart both during 
and afterthe model year of production.
    (c) Failure to comply with all provisions of this subpart will 
beconsidered to be a failure to satisfy the conditions upon which 
thecertificate was issued, and the certificate may be deemed void 
abinitio pursuant to Sec. 91.123.
    (d) The manufacturer bears the burden of establishing to 
thesatisfaction of the Administrator that the conditions upon which 
thecertificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such credits may be revoked based on reviewof 
end-of-year reports, follow-up audits, and any other verificationsteps 
deemed appropriate by the Administrator.



Sec. 91.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed records for each 
engineproduced:
    (1) EPA engine family,
    (2) Engine identification number,
    (3) Engine model year and build date,
    (4) Power rating,
    (5) Purchaser and destination, and
    (6) Assembly plant.
    (b) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed records for each 
enginefamily:
    (1) EPA engine family identification code,
    (2) Family Emission Limit (FEL) or FELs where FEL changes havebeen 
implemented during the model year,
    (3) Power rating for each configuration tested,
    (4) Projected sales volume for the model year, and
    (5) Actual sales volume for the model year for each FEL where 
FELchanges have been implemented during the model year.
    (c) Any manufacturer producing an engine family participating 
intrading reserved credits must maintain the following records on 
aquarterly basis for each such engine family:
    (1) The engine family,
    (2) The actual quarterly and cumulative applicableproduction/sales 
volume,
    (3) The values required to calculate credits as given inSec. 
91.207,
    (4) The resulting type and number of credits generated/required,
    (5) How and where credit surpluses are dispersed, and
    (6) How and through what means credit deficits are met.

[[Page 321]]

    (d) The manufacturer must retain all records required to 
bemaintained under this section for a period of eight years from the 
duedate for the end-of-model year report. Records may be retained as 
hardcopy or reduced to microfilm, ADP diskettes, and so forth, 
dependingon the manufacturer's record retention procedure; provided, 
that inevery case all information contained in the hard copy is 
retained.
    (e) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, themanufacturer 
must submit to the Administrator the information that themanufacturer is 
required to retain.
    (g) EPA may void ab initio a certificate of conformity foran engine 
family for which the manufacturer fails to retain therecords required in 
this section or to provide such information to theAdministrator upon 
request pursuant to Sec. 91.123.



Sec. 91.210  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine 
family,the actual sales volume, the values required to calculate credits 
asgiven in Sec. 91.207, and the number of creditsgenerated/required. 
Manufacturers must also submit how and wherecredit surpluses were 
dispersed (or are to be banked) and/or how andthrough what means credit 
deficits were met. Copies of contractsrelated to credit trading must be 
included or supplied by the broker,if applicable. The report must 
include a calculation of creditbalances to show that the credit 
summation is equal to or greater thanzero.
    (b) The sales volume for end-of-year and final reports must bebased 
on the location of the point of first retail sale (for example,retail 
customer or dealer) also called the final product purchaselocation.
    (c)(1) End-of-year reports must be submitted within 90 days of 
theend of the model year to: Manager, Engine Compliance Programs 
Group(6403-J), US Environmental Protection Agency, 1200 
PennsylvaniaAve., NW., Washington, DC 20460.
    (2) Final reports must be submitted within 270 days of the end ofthe 
model year to: Manager, Engine Compliance Programs Group(6403-J), U.S. 
Environmental Protection Agency, 1200Pennsylvania Ave., NW., Washington, 
DC 20460.
    (d) Failure by a manufacturer to submit any end-of-year or 
finalreports in the specified time for all engines is a violation 
ofSec. 91.1103(a)(2) and section 213(d) of the Clean Air Actfor each 
engine.
    (e) A manufacturer generating credits for banking only who failsto 
submit end-of-year reports in the applicable specified time period(90 
days after the end of the model year) may not use the creditsuntil such 
reports are received and reviewed by EPA. Use of projectedcredits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation, may be correctedin the 
final report up to 270 days from the end of the model year.
    (g) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end-of-year or final report previously submitted to 
EPAunder this section, the manufacturer's credits and credit 
calculationsmust be recalculated. Erroneous positive credits will be 
void exceptas provided in paragraph (h) of this section. Erroneous 
negativecredit balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA 
reviewdetermines a reporting error in the manufacturer's favor (that 
is,resulting in an increased credit balance) or if the 
manufacturerdiscovers such an error within 270 days of the end of the 
model year,EPA shall restore the credits for use by the manufacturer.



Sec. 91.211  Notice of opportunity for hearing.

    Any voiding of the certificate underSec. Sec. 91.203(f), 91.206(d), 
91.207(d), 91.208(c), orSec. 91.209(g) shall be made only after the 
manufacturerconcerned is offered an opportunity for a hearing conducted 
inaccordance with Sec. Sec. 91.512, 91.513 and 91.514 and,if a 
manufacturer requests

[[Page 322]]

such a hearing, will be made onlyafter an initial decision by the 
Presiding Officer.



              Subpart D_Emission Test Equipment Provisions



Sec. 91.301  Scope; applicability.

    (a) This subpart describes the equipment required in order toperform 
exhaust emission tests on new marine gasoline-fueled spark-ignition 
propulsion engines subject to the provisions of subpart A ofthis part 
91.
    (b) Exhaust gases are sampled while the test engine is operatedusing 
a steady state test cycle on an engine dynamometer. Exhaust gassampling 
may be performed using either the raw gas sampling method orthe constant 
volume sampling (CVS) method. The exhaust gases receivespecific 
component analysis determining concentration of pollutant,exhaust 
volume, the fuel flow, and the power output during each mode.Emissions 
are reported on a gram per brake-kilowatt hour (g/kW-hr).See subpart E 
of this part for a complete description of the testprocedure.
    (c) Additional information about system design, 
calibrationmethodologies, and so forth, for raw gas sampling can be 
found in 40CFR part 1065. Examples for system design, calibration 
methodologies,and so forth, for dilute sampling can be found in 40 CFR 
part 1065.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.302  Definitions.

    The definitions in Sec. 91.3 apply to this subpart.



Sec. 91.303  Acronyms and abbreviations.

    (a) The acronyms and abbreviations in Sec. 91.5 apply tothis 
subpart.
    (b) The symbols in Table 1 in appendix A of this subpart apply 
tothis subpart.



Sec. 91.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for 
exhaustemissions. Engines are operated on dynamometers meeting 
thespecification given in Sec. 91.305.
    (b) The exhaust is tested for gaseous emissions using either 
aconstant volume sampling (CVS) system as described inSec. 91.414, or 
using the raw gas sampling system asdescribed in Sec. 91.421. Both 
systems require analyzers(see paragraph (c) of this section) specific to 
the pollutant beingmeasured.
    (c) Analyzers used are a non-dispersive infrared detector 
(NDIR)absorption type for carbon monoxide and carbon dioxide 
analysis;paramagnetic detector (PMD), zirconia (ZRDO), or 
electrochemical type(ECS) for oxygen analysis; a flame ionization 
detector (FID) or heatedflame ionization detector (HFID) type for 
hydrocarbon analysis; and achemiluminescent detector (CLD) or heated 
chemiluminescent detector(HCLD) for oxides of nitrogen analysis.



Sec. 91.305  Dynamometer specifications and calibration accuracy.

    (a) Dynamometer specifications. (1) The dynamometer teststand and 
other instruments for measurement of engine speed and torquemust meet 
the accuracy requirements shown in Table 2 in appendix A tothis subpart. 
The dynamometer must be capable of performing the testcycle described in 
Sec. 91.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometertest stand 
and other instruments for measurement of engine torque andspeed must 
meet the calibration frequency shown in Table 2 in appendixto this 
subpart.
    (2) A minimum of three calibration weights for each range used 
isrequired. The weights must be equally spaced and traceable to 
within0.5 percent of National Institute of Standards and Testing 
(NIST)weights. Laboratories located in foreign countries may 
certifycalibration weights to local government bureau standards.



Sec. 91.306  Dynamometer torque cell calibration.

    (a)(1) Any lever arm used to convert a weight or a force through 
adistance into a torque must be used in a horizontal position 
forhorizontal shaft dynamometers (five degrees). 
For verticalshaft dynamometers, a pulley system may be used to convert 
the

[[Page 323]]

dynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibrationweight 
to be used by:

IT=Moment Arm (meters)xCalibration Weight (Newtons)

    (3) Attach each calibration weight specified inSec. 91.305(b)(2) to 
the moment arm at the calibrationdistance determined in paragraph (a)(2) 
of this section. Record thepower measurement equipment response (N-m) to 
each weight.
    (4) Compare the torque value measured to the calculated torque.
    (5) The measured torque must be within two percent of thecalculated 
torque.
    (6) If the measured torque is not within two percent of 
thecalculated torque, adjust or repair the system. Repeat steps 
inparagraphs (a)(1) through (a)(6) of this section with the adjusted 
orrepaired system.
    (b) Option. A master load-cell or transfer standard may be used 
toverify the torque measurement system.
    (1) The master load-cell and read out system must be calibratedwith 
weights specified in Sec. 91.305(b)(2).
    (2) Attach the master load-cell and loading system.
    (3) Load the dynamometer to a minimum of three equally spacedtorque 
values as indicated by the master load-cell for each in-userange used.
    (4) The in-use torque measurement must be within two percent ofthe 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the 
mastertorque, adjust or repair the system. Repeat steps in paragraphs 
(b)(2)through (b)(4) of this section with the adjusted or repaired 
system.
    (c) Calibrated resistors may not be used for dynamometer 
torquetransducer calibration, but may be used to span the transducer 
priorto engine testing.
    (d) Other engine dynamometer system calibrations such as speed 
areperformed as specified by the dynamometer manufacturer or as 
dictatedby good engineering practice.



Sec. 91.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity 
tomaintain the engine at normal operating temperatures as prescribed 
bythe engine manufacturer. Auxiliary fan(s) may be used to 
maintainsufficient engine cooling during dynamometer operation.



Sec. 91.308  Lubricating oil and test fuel.

    (a) Lubricating oil. (1) Use the engine lubricating oilwhich meets 
the marine engine manufacturer's requirements for aparticular engine and 
intended usage. Record the specifications of thelubricating oil used for 
the test.
    (2) For two-stroke engines, the fuel/oil mixture ratio must bethat 
which is recommended by the manufacturer. If the flow rate of theoil in 
the engine is greater than two percent of the fuel flow rate,then the 
oil supplied to the engine must be added to the fuel flow inthe emission 
calculations described in Sec. 91.419 andSec. 91.426. Good engineering 
judgment may be used toestimate oil flow when oil injection is used.
    (b) Test fuels--certification. The manufacturer mustuse gasoline 
having the specifications or substantially equivalentspecifications 
approved by the Administrator, as specified in Table 3in appendix A of 
this subpart for exhaust emission testing of gasolinefueled engines. The 
specification range of the fuel to be used underthis paragraph must be 
reported in accordance withSec. 91.109(d).
    (c) Test fuels--service accumulation. (1) Unleadedgasoline 
representative of commercial gasoline which will be generallyavailable 
through retail outlets must be used in service accumulationfor gasoline-
fueled marine engines. As an alternative, thecertification test fuels 
specified under paragraph (b) of this sectionfor engine service 
accumulation. Leaded fuel may not be used duringservice accumulation.
    (2) The octane rating of the gasoline used may not be higher than4.0 
research octane numbers above the minimum recommended by themanufacturer 
and have a minimum sensitivity of 7.5 octane numbers,where sensitivity 
is defined as research octane number minus motoroctane number.

[[Page 324]]

    (d) Other fuels may be used for testing provided:
    (1) They are commercially viable,
    (2) Information, acceptable to the Administrator, is provided toshow 
that only the designated fuel would be used in customer service,
    (3) Use of a fuel listed under paragraph (b) of this section 
wouldhave a detrimental effect on emissions or durability; and
    (4) The Administrator provides written approval of the 
fuelspecifications prior to the start of testing.



Sec. 91.309  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within100 
cm of the air-intake of the engine. The measurement location mustbe 
either in the supply system or in the air stream entering theengine.
    (b) The temperature measurements must be accurate to within2 [deg]C.



Sec. 91.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake 
airother than the ambient air in the test cell (i.e., air which has 
beenpumbed directly to the engine air intake system). For engines 
whichuse ambient test cell air for the engine intake air, the 
ambienttestcell humidity measurement may be used.
    (a) Humidity conditioned air supply. Air that has had itsabsolute 
humidity altered is considered humidity-conditioned air. Forthis type of 
intake air supply, the humidity measurements must be madewithin the 
intake air supply system, and after the humidityconditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements inunconditioned 
intake air supply must be made in the intake air streamentering the 
engine. Alternatively, the humidity measurements can bemeasured within 
the intake air stream entering the supply system.



Sec. 91.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levelsencountered 
by the test engine throughout the test sequence may not beless than 20 
[deg]C nor more than 30 [deg]C.
    (2) Calculate all volumes and volumetric flow rates at 
standardconditions for temperature and pressure. Use these 
conditionsconsistently throughout all calculations. Standard conditions 
fortemperature and pressure are 25 [deg]C and 101.3 kPa.
    (b) Engine test conditions. Measure the absolute 
temperature(designated as T and expressed in Kelvin) of the engine air 
at theinlet to the engine and the dry atmospheric pressure (designated 
asps and expressed in kPa. Determine the parameterf according to the 
following provisions:
    (1) Naturally aspirated and mechanically supercharged engines:
    [GRAPHIC] [TIFF OMITTED] TR04OC96.005
    
    (2) Turbocharged engine with or without cooling of inlet air:
    [GRAPHIC] [TIFF OMITTED] TR04OC96.006
    
    (3) For a test to be recognized as valid, the parameter fmust be 
between the limits as shown below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.007



Sec. 91.312  Analytical gases.

    (a) The shelf life of a calibration gas may not be exceeded.Record 
the expiration date stated by the gas supplier for eachcalibration gas.
    (b) Pure gases. The required purity of the gases is definedby the 
contamination limits given in parenthesis. The following gasesmust be 
available for operation.
    (1) Purified nitrogen, also referred to as ``zero-gradenitrogen'' 
(Contamination<=1 ppm C, <=1 ppm CO, <=400ppm CO2, <=0.1 ppm 
NO)
    (2) Purified oxygen (Purity 99.5 percent vol O2)
    (3) Hydrogen-helium mixture (402 percent 
hydrogen,balance helium) (Contamination<=1 ppm C, <=400 ppm CO)
    (4) Purified synthetic air, also referred to as ``zerogas'' 
(Contamination<=1 ppm C, <=1 ppm CO, <=400 ppmCO2, <=0.1 ppm 
NO) (Oxygen content between 18-21percent vol.)

[[Page 325]]

    (c) Calibration and span gases. (1) Calibration gasvalues are to be 
derived from NIST ``Standard ReferenceMaterials'' (SRM's) or other local 
gas standards and are to besingle blends as specified in this 
subsection.
    (2) Mixtures of gases having the following chemical compositionsmust 
be available:

C3 H8 and purified synthetic air 
    (dilutemeasurements); C3 H8 and purified 
    nitrogen(raw measurements);
CO and purified nitrogen;
NOX and purified nitrogen (the amount ofNO2 
    contained in this calibration gas must not exceed fivepercent of the 
    NO content);
CO2 and purified nitrogen.

    Note: For the HFID or FID, the manufacturer may choose touse as a 
diluent span gas and the calibration gas either purifiedsynthetic air or 
purified nitrogen. Any mixture of C3H8 and 
purified synthetic air which contains aconcentration of propane higher 
than what a gas supplier considers tobe safe may be substituted with a 
mixture of C3H8 and purified nitrogen. However, 
the manufacturer mustbe consistent in the choice of diluent (zero air or 
purified nitrogen)between the calibration and span gases. If a 
manufacturer chooses touse C3 H8 and purified 
nitrogen for thecalibration gases, then purified nitrogen must be the 
diluent for thespan gases.

    (3) The true concentration of a span gas must be within 2percent of the NIST gas standard. The true 
concentration of acalibration gas must be within 1 
percent of the NIST gasstandard. The use of precision blending devices 
(gas dividers) toobtain the required calibration gas concentrations is 
acceptable. Giveall concentrations of calibration gas on a volume basis 
(volumepercent or volume ppm).
    (4) The gas concentrations used for calibration and span may alsobe 
obtained by means of a gas divider, diluting with purifiedN2 
or with purified synthetic air. The accuracy of themixing device must be 
such that the concentration of the diluted gasesmay be determined to 
within 2 percent.
    (d) Oxygen interference check gases must contain propane with 
350ppmC 75 ppmC hydrocarbon. Determine the 
concentration valueto calibration gas tolerances by chromatographic 
analysis of totalhydrocarbons plus impurities or by dynamic blending. 
Use nitrogen asthe predominant diluent with the balance oxygen.
    (e) Fuel for the hydrocarbon flame ionization detector (HC-FID)must 
be a blend of 402 percent hydrogen with the 
balancebeing helium. The mixture shall contain less than one ppm 
equivalentcarbon response; 98 to 100 percent hydrogen fuel may be used 
withadvance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration ofoxygen must 
be within one mole percent of the oxygen concentration ofthe burner air 
used in the latest oxygen interference check (percentO2 I), 
see Sec. 91.316(d). If the difference inoxygen concentration is greater 
than one mole percent, then the oxygeninterference must be checked and 
the analyzer adjusted if necessary,to meet the percent O2 I 
requirements. The burner air mustcontain less than two ppmC hydrocarbon.



Sec. 91.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the followinginstruments:
    (1) Carbon monoxide (CO) analysis. (i) Thecarbon monoxide analyzer 
must be of the non-dispersive infrared (NDIR)absorption type.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon dioxide (CO2) analysis.(i) The carbon dioxide 
analyzer must be of the non-dispersive infrared(NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) Oxygen (O2) analysis. Oxygen(O2) analyzers 
may be of the paramagnetic (PMD), zirconia(ZRDO) or electrochemical type 
(ECS).
    (4) Hydrocarbon (HC) analysis. (i) For Raw GasSampling, the 
hydrocarbon analyzer must be of the heated flameionization (HFID) type. 
For constant volume sampling, the hydrocarbonanalyzer may be of the 
flame ionization (FID) type or of the heatedflame ionization (HFID) 
type.
    (ii) For the HFID system, if the temperature of the exhaust gas 
atthe sample probe is below 190 [deg]C, the temperature of the 
valves,pipe work, and so forth, must be controlled so as to maintain a 
walltemperature of 190 11 [deg]C. If the 
temperature of theexhaust gas at the sample probe is above 190 [deg]C,

[[Page 326]]

thetemperature of the valves, pipe work, and so forth, must be 
controlledso as to maintain a wall temperature greater than 180 [deg]C.
    (iii) For the HFID analyzer, the detector, oven, and sample-handling 
components within the oven must be suitable for continuousoperation at 
temperatures to 200 [deg]C. It must by capable ofmaintaining temperature 
within 5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications inSec. 
91.312.
    (v) The percent of oxygen interference must be less than 
threepercent, as specified in Sec. 91.316(d).
    (5) Oxides of nitrogen (NOX) analysis. (i)This analysis 
device consists of the following items:
    (A) A NO2 to NO converter. The NO2 to 
NOconverter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX 
converter(optional).
    (C) A chemiluminescent detector (CLD) or heated 
chemiluminescentdetector (HCLD).
    (ii) The quench interference must be less than three percent 
asmeasured in Sec. 91.325.
    (b) Other gas analyzers yielding equivalent results may be usedwith 
advance approval of the Administrator.
    (c) The following requirements must be incorporated as indicatedin 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be madeon a 
dry basis (for raw exhaust measurement only). Specificrequirements for 
the means of drying the sample can be found inSec. 91.313(e).
    (2) Calibration or span gases for the NOX 
measurementsystem must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment mustbe 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method 
ofremoving water from the sample. Water removal by condensation 
isacceptable. If water is removed by condensation, the sample 
gastemperature or sample dew point must be monitored either within 
thewater trap or downstream and its temperature must not exceed 7[deg]C. 
A water trap performing this function is an acceptablemethod. Means 
other than condensation may be used only with priorapproval from the 
Administrator.



Sec. 91.314  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers musthave a 
measuring range which allows them to measure the concentrationsof the 
exhaust gas sample pollutants with the accuracies shown inTable 2 in 
appendix A to this subpart.
    (1) Precision. The precision of the analyzer must be, atworst, 
1 percent of full-scale concentration for each 
rangeused. The precision is defined as 2.5 times the standard 
deviation(s)of 10 repetitive responses to a given calibration or span 
gas.
    (2) Noise. The analyzer peak-to-peak response to zero andcalibration 
or span gases over any 10-second period may not exceed twopercent of 
full-scale chart deflection on all ranges used.
    (3) Zero drift. The analyzer zero-response drift during aone-hour 
period must be less than two percent of full-scale chartdeflection on 
the lowest range used. The zero-response is defined asthe mean response 
including noise to a zero-gas during a 30-secondtime interval.
    (4) Span drift. The analyzer span drift during a one-hourperiod must 
be less than two percent of full-scale chart deflection onthe lowest 
range used. The analyzer span is defined as the differencebetween the 
span-response and the zero-response. The span-response isdefined as the 
mean response including noise to a span gas during a30-second time 
interval.
    (b) Operating procedure for analyzers and sampling system.Follow the 
start-up and operating instructions of the instrumentmanufacturer. 
Adhere to the minimum requirements given inSec. 91.316 to Sec. 91.325 
andSec. 91.409.
    (c) Emission measurement accuracy--bag sampling. (1)Good engineering 
practice dictates that exhaust emission sampleanalyzer readings below 15 
percent of full scale chart deflectionshould generally not be used.
    (2) Some high resolution read-out systems, such as computers, data

[[Page 327]]

loggers, and so forth, can provide sufficient accuracy andresolution 
below 15 percent of full scale. Such systems may be usedprovided that 
additional calibrations are made to ensure the accuracyof the 
calibration curves. The following procedure for calibrationbelow 15 
percent of full scale may be used:
    Note: If a gas divider is used, the gas divider must conformto the 
accuracy requirements as follows: The use of precision blendingdevices 
(gas dividers) to obtain the required calibration gasconcentrations is 
acceptable, provided that the blended gases areaccurate to within 1.5 percent of NIST gas standards or othergas standards 
which have been approved by the Administrator. Thisaccuracy implies that 
primary gases used for blending must be``named'' to an accuracy of at 
least 1 percent,traceable to NIST or other 
approved gas standards.
    (i) Span the full analyzer range using a top range calibrationgas. 
The span gases must be accurate to within 2 
percent ofNIST gas standards or other gas standards which have been 
approved bythe Administrator.
    (ii) Generate a calibration curve according to, and meeting 
therequirements of the sections describing analyzer calibrations 
whichare found in Sec. Sec. 91.316, 91.317, 91.318, and 91.320of this 
chapter.
    (iii) Select a calibration gas (a span gas may be used 
forcalibrating the CO2 analyzer) with a concentration 
betweenthe two lowest non-zero gas divider increments. This gas must 
be``named'' to an accuracy of 2 percent of NIST 
gasstandards, or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated 
inparagraphs (c)(2) (i) and (ii) of this section, check theconcentration 
of the gas selected in paragraph (c)(2)(iii) of thissection. The 
concentration derived from the curve must be within2.3 percent (2.8 percent for 
CO2 spangas) of the gas' original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of thissection 
are met, use the gas divider with the gas selected inparagraph 
(c)(2)(iii) of this section and determine the remainder ofthe 
calibration points. Fit a calibration curve perSec. Sec. 91.316, 
91.317, 91.318, and 91.320 of thischapter for the entire analyzer range.
    (d) Emission measurement accuracy--continuoussampling. Analyzers 
used for continuous analysis must be operatedsuch that the measured 
concentration falls between 15 and 100 percentof full scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or morethan 
100 percent of full scale if automatic range change circuitry isused and 
the limits for range changes are between 15 and 100 percentof full scale 
chart deflection;
    (2) The analyzer's response may be less than 15 percent of fullscale 
if:
    (i) Alternative in paragraph (c)(2) of this section is used toensure 
that the accuracy of the calibration curve is maintained below15 
percent; or
    (ii) The full scale value of the range is 155 ppmC or less; or
    (iii) The emissions from the engine are erratic and the 
integratedchart deflection value for the cycle is greater than 15 
percent offull scale; or
    (iv) The contribution of all data read below the 15 percent levelis 
less than 10 percent by mass of the final test results.



Sec. 91.315  Analyzer initial calibration.

    (a) Warming-up time. Follow the warm-up time according tothe 
recommendations of the manufacturer. If not specified, a minimumof two 
hours should be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. Tune and maintain the NDIRanalyzer per 
the instrument manufacturer recommendations. Thecombustion flame of the 
HFID analyzer must be optimized in order tomeet the specifications in 
Sec. 91.316(b).
    (c) Zero setting and calibration. Using purified syntheticair (or 
nitrogen), set the CO, CO2, NOX and HCanalyzers at 
zero. Connect the appropriate calibrating gases to theanalyzers and 
record the values. The same gas flow rates shall be usedas when sampling 
exhaust.
    (d) Rechecking of zero setting. Recheck the zero settingand, if 
necessary, repeat the procedure described in paragraph (c) ofthis 
section.

[[Page 328]]



Sec. 91.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as describedin 
this section. Operate the HFID to a set point 5.5 
[deg]Cbetween 185 and 197 [deg]C.
    (b) Initial and periodic optimization of detector response. Priorto 
introduction into service and at least annually thereafter, adjustthe 
FID and HFID hydrocarbon analyzer for optimum hydrocarbon responseas 
specified by this paragraph. Alternative methods yieldingequivalent 
results may be used, if approved in advance by theAdministrator.
    (1) Follow good engineering practices for initial instrumentstart-up 
and basic operating adjustment using the appropriate fuel(see Sec. 
91.312) and purified synthetic air or zero-gradenitrogen.
    (2) One of the following procedures is required for FID or 
HFIDoptimization:
    (i) The procedure outlined in Society of Automotive Engineers(SAE) 
paper No. 770141, ``Optimization of Flame IonizationDetector for 
Determination of Hydrocarbons in Diluted AutomobileExhaust''; author, 
Glenn D. Reschke. This procedure has beenincorporated by reference. See 
Sec. 91.6.
    (ii) The HFID optimization procedures outlined in 40 CFR part1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance 
bythe Administrator.
    (3) After the optimum flow rates have been determined, they 
arerecorded for future reference.
    (c) Initial and periodic calibration. Prior to introduction 
intoservice and monthly thereafter, or within one month prior to 
thecertification test, calibrate the FID or HFID hydrocarbon analyzer 
onall normally used instrument ranges, using the steps in thisparagraph. 
Use the same flow rate and pressures as when analyzingsamples. Introduce 
calibration gases directly at the analyzer. Anoptional method for dilute 
sampling described in 40 CFR part 1065,subpart F, may be used.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with purified synthetic air 
orzero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration 
gaseshaving nominal concentrations between 10 and 90 percent of that 
range.A minimum of six evenly spaced points covering at least 80 percent 
ofthe 10 to 90 percent range (64 percent) is required (see 
followingtable).

------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50?
                                             percent, not 64percent.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points is
                                             needed
------------------------------------------------------------------------

    (4) For each range calibrated, if the deviation from a least-squares 
best-fit straight line is two percent or less of the value ateach data 
point, calculate concentration values by use of a singlecalibration 
factor for that range. If the deviation exceeds twopercent at any point, 
use the best-fit non-linear equation whichrepresents the data to within 
two percent of each test point todetermine concentration.
    (d) Oxygen interference optimization. Choose a range where theoxygen 
interference check gases will fall in the upper 50 percent.Conduct the 
test, as outlined in this paragraph, with the oventemperature set as 
required by the instrument manufacturer. Oxygeninterference check gas 
specifications are found inSec. 91.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21 percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5 percentof 
full scale repeat paragraphs (d)(1) and (d)(2) of this section tocorrect 
the problem.
    (4) Introduce the 5 percent and 10 percent oxygen interferencecheck 
gases.
    (5) Recheck the zero response. If it has changed more than1 percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated 
aspercent O2 I) for each mixture in paragraph (d)(4) of 
thissection according to the following equation:

percent O2 I = (B - Analyzer response (ppm C))/B x 100

[[Page 329]]

[GRAPHIC] [TIFF OMITTED] TR21SE05.022

Where:

A=hydrocarbon concentration (ppmC) of the span gas used inparagraph 
(d)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interferencecheck gases 
used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as 
percentO2 I) must be less than three 
percent for allrequired oxygen interference check gases prior to 
testing.
    (8) If the oxygen interference is greater than the 
specifications,incrementally adjust the air flow above and below the 
manufacturer'sspecifications, repeating paragraphs (d)(1) through (d)(7) 
of thissection for each flow.
    (9) If the oxygen interference is greater than the 
specificationafter adjusting the air flow, vary the fuel flow and 
thereafter thesample flow, repeating paragraphs (d)(1) through (d)(7) of 
thissection for each new setting.
    (10) If the oxygen interference is still greater than 
thespecifications, repair or replace the analyzer, FID fuel, or 
burnerair prior to testing. Repeat this section with the repaired 
orreplaced equipment or gases.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer described in 
thissection.
    (b) Initial and periodic interference check. Prior to 
itsintroduction into service and annually thereafter, check the 
NDIRcarbon monoxide analyzer for response to water vapor 
andCO2.
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance on the 
mostsensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Bubble a mixture of three percent CO2 inN2 
through water at room temperature and record analyzerresponse.
    (4) An analyzer response of more than one percent of full scalefor 
ranges above 300 ppm full scale or more than three ppm on rangesbelow 
300 ppm full scale requires corrective action. (Use ofconditioning 
columns is one form of corrective action which may betaken.)
    (c) Initial and periodic calibration. Calibrate the NDIR 
carbonmonoxide analyzer prior to its introduction into service and 
monthlythereafter.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrationsbetween 10 
and 90 percent of that range. A minimum of six evenlyspaced points 
covering at least 80 percent of the 10 to 90 range (64percent) is 
required (see following table).

------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64percent.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is two percent or less of the value at each data 
point,concentration values may be calculated by use of a single 
calibrationfactor for that range. If the deviation exceeds two percent 
at anypoint, use the best-fit non-linear equation which represents the 
datato within

[[Page 330]]

two percent of each test point to determineconcentration.



Sec. 91.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer 
asdescribed in this section.
    (b) Initial and periodic interference. Prior to its introductioninto 
service, and monthly thereafter, check the chemiluminescentoxides of 
nitrogen analyzer for NO2 to NO converterefficiency. Figure 2 
in appendix B of this subpart is a reference forthe following 
paragraphs:
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified syntheticair 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to thesample 
inlet of the oxides of nitrogen analyzer which has been set tothe most 
common operating range.
    (4) Introduce into the NOX generator analyzer-systeman 
NO-in-nitrogen (N2) mixture with an NO concentrationequal to 
approximately 80 percent of the most common operating range.The 
NO2 content of the gas mixture must be less than 5percent of 
the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, recordthe 
concentration of NO indicated by the analyzer.
    (6) Turn on the NOX generator O2 (or 
air)supply and adjust the O2 (or air) flow rate so that the 
NOindicated by the analyzer is about 10 percent less than indicated 
inparagraph (b)(5) of this section. Record the concentration of NO 
inthis NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation modeand 
adjust the generation rate so that the NO measured on the analyzeris 20 
percent of that measured in paragraph (b)(5) of this section.There must 
be at least 10 percent unreacted NO at this point. Recordthe 
concentration of residual NO as value ``d.''
    (8) Switch the oxides of nitrogen analyzer to the NOXmode 
and measure total NOX. Record this value as``a.''
    (9) Switch off the NOX generator but maintain gas 
flowthrough the system. The oxides of nitrogen analyzer will indicate 
theNOX in the NO+O2 mixture. Record this value 
as``b.''
    (10) Turn off the NOX generator O2 (orair) 
supply. The analyzer will now indicate the NOX in theoriginal 
NO-in-N2 mixture. This value should be no morethan 5 percent 
above the value indicated in paragraph (b)(4) of thissection.
    (11) Calculate the efficiency of the NOX converter 
bysubstituting the concentrations obtained into the following equation:

percent efficiency = (1 + (a - b)/(c - d)) x100
Where:

a=concentration obtained in paragraph (b)(8) of this section,
b=concentration obtained in paragraph (b)(9) of this section,
c=concentration obtained in paragraph (b)(6) of this section,
d=concentration obtained in paragraph (b)(7) of this section.

    If converter efficiency is not greater than 90 percent, 
correctiveaction is required.
    (c) Initial and periodic calibration. Prior to its introductioninto 
service, and monthly thereafter, calibrate the chemiluminescentoxides of 
nitrogen analyzer on all normally used instrument ranges.Use the same 
flow rate as when analyzing samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air orzero-
grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations between10 
and 90 percent of that range. A minimum of six evenly spaced 
pointscovering at least 80 percent of the 10 to 90 percent range 
(64percent) is required (see following table).

------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64percent.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.

[[Page 331]]

 
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is two percent or less of the value at each data 
point,concentration values may be calculated by use of a single 
calibrationfactor for that range. If the deviation exceeds two percent 
at anypoint, use the best-fit non-linear equation which represents the 
datato within two percent of each test point to determine concentration.
    (d) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065, subparts 
Cand D, may be used in lieu of the procedures specified in thissection.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion 
ofNO2 to NO is tested as given in paragraphs (a)(1) 
through(a)(8) of this section (see Figure 2 in appendix B to this 
subpart).
    (1) Using the test setup as shown in Figure 2 in appendix B tothis 
subpart (see also Sec. 91.318 of this chapter) and theprocedures 
described in paragraphs (a)(2) through (a)(8) of thissection, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD in the most common operating rangefollowing 
the manufacturer's specifications using zero and span gas(the NO content 
of which must amount to about 80 percent of theoperating range and the 
NO2 concentration of the gasmixture less than 5 percent of 
the NO concentration). TheNOX analyzer must be in the NO mode 
so that the span gasdoes not pass through the converter. Record the 
indicatedconcentration.
    (3) Calculate the efficiency of the NOX converter 
asdescribed in Sec. 91.318(b).
    (4) Via a T-fitting, add oxygen continuously to the gas flow 
untilthe concentration indicated is about 20 percent less than 
theindicated calibration concentration given in paragraph (a)(2) of 
thissection. Record the indicated concentration as ``c''. Theozonator is 
kept deactivated throughout the process.
    (5) Activate the ozonator to generate enough ozone to bring the 
NOconcentration down to about 20 percent (minimum 10 percent) of 
thecalibration concentration given in paragraph (a)(2) of this 
section.Record the indicated concentration as ``d''.
    Note: If, with the analyzer in the most common range 
theNOX converter cannot give a reduction from 80 percent to20 
percent, then use the highest range which will give the reduction.
    (6) Switch the NO analyzer to the NOX mode, whichmeans 
that the gas mixture (consisting of NO, NO2,O2 and 
N2) now passes through the converter.Record the indicated 
concentration as ``a''.
    (7) Deactivate the ozonator. The mixture of gases described 
inparagraph (a)(6) of this section passes through the converter into 
thedetector. Record the indicated concentration as ``b''.
    (8) Switched to NO mode with the ozonator deactivated, the flow 
ofoxygen or synthetic air is also shut off. The NOX readingof 
the analyzer may not deviate by more than 5 
percent of thetheoretical value of the figure given in paragraph (a)(2) 
of thissection.
    (b) The efficiency of the converter must be tested prior to 
eachcalibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90percent.



Sec. 91.320  Carbon dioxide analyzer calibration.

    (a) Prior to its introduction into service, and monthlythereafter, 
or within one month prior to the certification test,calibrate the NDIR 
carbon dioxide analyzer as follows:
    (1) Follow good engineering practices for instrument start-up 
andoperation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purifiedsynthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with 
carbondioxide-

[[Page 332]]

in-N2 calibration or span gases havingnominal concentrations 
between 10 and 90 percent of that range. Aminimum of six evenly spaced 
points covering at least 80 percent ofthe 10 to 90 percent range (64 
percent) is required (see followingtable).

------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64percent.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each 
rangecalibrated, if the deviation from a least-squares best-fit 
straightline is 2 percent or less of the value at each data 
point,concentration values may be calculated by use of a single 
calibrationfactor for that range. If the deviation exceeds 2 percent at 
anypoint, use the best-fit non-linear equation which represents the 
datato within 2 percent of each test point to determine concentration.
    (b) The initial and periodic interference, system check, 
andcalibration test procedures specified in 40 CFR part 1065, subparts 
Cand D, may be used in lieu of the procedures in this section.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow themanufacturer's 
instructions for initial start-up and basic operatingadjustments.
    (b) Calibration curve. Develop a calibration curve for eachrange 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 
0.5percent of full scale, repeat the steps given in paragraphs (b)(1) 
and(b)(2) of this section.
    (4) Record the response of calibration gases having 
nominalconcentrations between 10 and 90 percent of full-scale 
concentration.A minimum of six evenly spaced points covering at least 80 
percent ofthe 10 to 90 percent range (64 percent) is required (see 
followingtable).

------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64percent.
20, 30, 40, 50, 60, 70, 80, 90............  Yes.
10, 25, 40, 55, 70, 85....................  Yes.
10, 30, 50, 70, 90........................  No, though equally spaced
                                             and entire rangecovered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (5) Generate a calibration curve. The calibration curve must be 
offourth order or less, have five or fewer coefficients, and be of 
theform of equation (1) or (2). Include zero as a data 
point.Compensation for known impurities in the zero gas can be made to 
thezero-data point. The calibration curve must fit the data points 
within2 percent of point or one percent of full scale, whichever is 
less.
[GRAPHIC] [TIFF OMITTED] TR04OC96.010

y=concentration
x=chart deflection

    (6) Option. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of 
thissection exists;
    (ii) The responses generated in paragraph (b)(4) of this sectionare 
within one percent of full scale or two percent of point,whichever is 
less, of the responses predicted by the calibration curvefor the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range usedmust 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within 2percent of 
being linear, a linear calibration may be used. Todetermine if this 
criterion is met:
    (1) Perform a linear least-square regression on the datagenerated. 
Use an equation of the form y=mx, where x is the actualchart deflection 
and y is the concentration.
    (2) Use the equation z=y/m to find the linear chart 
deflection(designated as z)

[[Page 333]]

for each calibration gas concentration(designated as y).
    (3) Determine the linearity (designated as percent L) for 
eachcalibration gas by:
[GRAPHIC] [TIFF OMITTED] TR04OC96.011

    (4) The linearity criterion is met if the percent L is less 
than2 percent for each data point generated. For 
each emissiontest, use a calibration curve of the form Y=mx. The slope 
(designatedas m) is defined for each range by the spanning process.



Sec. 91.322  Calibration of other equipment.

    Calibrate other test equipment as often as required by 
themanufacturer or as necessary according to good engineering practice.



Sec. 91.323  Analyzer bench checks.

    (a) Prior to initial use and after major repairs, verify that 
eachanalyzer complies with the specifications given in Table 2 in 
appendixA to this subpart.
    (b) If a stainless steel NO2 to NO converter is 
used,condition all new or replacement converters. The conditioning 
consistsof either purging the converter with air for a minimum of four 
hoursor until the converter efficiency is greater than 90 percent. 
Theconverter must be at operational temperature while purging. Do not 
usethis procedure prior to checking converter efficiency on in-
useconverters.



Sec. 91.324  Analyzer leakage check.

    (a) Vacuum side leak check. (1) Check any location withinthe 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 
0.5percent of the in-use flow rate for the portion of the system 
beingchecked. The analyzer flows and bypass flows may be used to 
estimatethe in-use flow rates.
    (3) The sample probe and the connection between the sample probeand 
valve V2 (see Figure 1 in appendix B of this subpart) may beexcluded 
from the leak check.
    (b) Pressure side leak check. Substantial leaks of thesample on the 
pressure side of the system may impact sample integrityif the leaks are 
of sufficient magnitude. As a safety precaution, itis good engineering 
practice to perform periodic pressure side leakchecks on the sampling 
system.



Sec. 91.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being 
analyzedcan interfere with the reading in several ways. Positive 
interferenceoccurs in NDIR and PMD instruments when the interfering gas 
gives thesame effect as the gas being measured, but to a lesser 
degree.Negative interference occurs in NDIR instruments by the 
interferinggas broadening the absorption band of the measured gas, and 
in CLDinstruments by the interfering gas quenching the radiation. 
Theinterference checks described in this section are to be made 
initiallyand after any major repairs that could affect analyzer 
performance.
    (b) CO analyzer water and CO2 interference checks.Bubble 
through water at room temperature a CO2 span gashaving a 
concentration of between 80 percent and 100 percent inclusiveof full 
scale of the maximum operating range used during testing andrecord the 
analyzer response. For dry measurements, this mixture maybe introduced 
into the sample system prior to the water trap. Theanalyzer response 
must not be more than one percent of full scale forranges equal to or 
above 300 ppm or more than three ppm for rangesbelow 300 ppm.
    (c) NOX analyzer quench check. The two gases ofconcern 
for CLD (and HCLD) analyzers are CO2 and watervapor. Quench 
responses to these two

[[Page 334]]

gases are proportional totheir concentrations and, therefore, require 
test techniques todetermine quench at the highest expected 
concentrations experiencedduring testing.
    (1) NOX analyzer CO2 quench check. (i)Pass a 
CO2 span gas having a concentration of 80 percentto 100 
percent of full scale of the maximum operating range usedduring testing 
through the CO2 NDIR analyzer and recordthe value as ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percentwith 
NO span gas and pass through the CO2 NDIR and CLD (orHCLD). 
Record the CO2 and NO values as ``b''and ``c'', respectively.
    (iii) Shut off the CO2 and pass only the NO span 
gasthrough the CLD (or HCLD). Record the NO value recorded as``d.''
    (iv) Calculate the percent CO2 quench as follows,which 
may not exceed three percent:

percent CO2 quench = 100 - 100 x [cx a/(d x a - d x b)] x a/b
Where:

a=Undiluted CO2 concentration (percent)
b=Diluted CO2 concentration (percent)
c=Diluted NO concentration (ppm)
d=Undiluted NO concentration (ppm)

    (2) NOX analyzer water quench check. (i) This 
checkapplies to wet measurements only. Pass an NO span gas having 
aconcentration of 80 percent to 100 percent of full scale of a 
normaloperating range through the CLD (or HCLD). Record the response 
as``D.'' Bubble through water at room temperature the NOspan gas and 
pass it through the CLD (or HCLD). Record the analyzersresponse as 
``AR.'' Determine and record the analyzersabsolute operating pressure 
and the bubbler water temperature. (It isimportant that the NO span gas 
contains minimal NO2concentration for this check. No 
allowance for absorption ofNO2 in water has been made in the 
following quenchcalculations.)
    (ii) Calculations for water quench must consider dilution of theNO 
span gas with water vapor and scaling of the water vaporconcentration of 
the mixture to that expected during testing.Determine the mixture's 
saturated vapor pressure (designated as``Pwb'') that corresponds to the 
bubbler watertemperature. Calculate the water concentration 
(``Z1'',percent) in the mixture by the following equation:

Z1 = 100 x (Pwb / GP)

Where:

GP=the analyzer's standard operating pressure (pascals)

    (iii) Calculate the expected dilute NO span gas and water 
vapormixture concentration (designated as ``D1'') by thefollowing 
equation:

D1 = D x (1 - Z1/100)

    (iv)(A) The maximum raw or dilute exhaust water vaporconcentration 
expected during testing (designated as Wm) can beestimated from the 
CO2 span gas (or as defined in theequation in this paragraph 
and designated as A) criteria in paragraph(c)(1) of this section and the 
assumption of a fuel atom H/C ratio of1.8:1 as:

Wm(%) = 0.9 x A(%)

Where:

A = maximum CO2 concentration expected in the samplesystem 
during testing.

    (B) Percent water quench shall not exceed 3 percent and shall 
becalculated by:

% Water Quench = 100 x (D1 - AR)/D1 x Wm/Z1

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July13, 2005]



Sec. 91.326  Pre- and post-test analyzer calibration.

    Calibrate the operating range of each analyzer used during thetest 
prior to and after each test in accordance with the followingprocedure 
(A chronic need for parameter adjustment can indicate a needfor 
instrument maintenance.):
    (a) Make the calibration using a zero gas and a span gas 
whosenominal value is between 80 percent and 100 percent of full 
scale,inclusive, of the measuring range.
    (b) Use the same analyzer(s) flow rate and pressure as that 
usedduring exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibrationis 
made.
    (d) If necessary, clean and/or replace filter elements 
beforecalibration is made.
    (e) Calibrate analyzer(s) as follows:

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    (1) Zero the analyzer using the appropriate zero gas. Adjustanalyzer 
zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the 
rangebeing calibrated. Adjust the analyzer to the calibration set point 
ifnecessary.
    (3) Recheck zero and span set points.
    (4) If the response of the zero gas or span gas differs more thanone 
percent of full scale, then repeat paragraphs (e)(1) through (3)of this 
section.



Sec. 91.327  Sampling system requirements.

    (a) Sample component surface temperature. For samplingsystems which 
use heated components, use engineering judgment tolocate the coolest 
portion of each component (pump, sample linesection, filters, and so 
forth) in the heated portion of the samplingsystem that has a separate 
source of power or heating element. Monitorthe temperature at that 
location. If several components are within anoven, then only the surface 
temperature of the component with thelargest thermal mass and the oven 
temperature need be measured.
    (b) If water is removed by condensation, monitor the sample 
gastemperature or sample dew point either within the water trap 
ordownstream. It may not exceed 7 [deg]C.



Sec. 91.328  Measurement equipment accuracy/calibration frequency table.

    (a) The accuracy of measurements must be such that the 
maximumtolerances shown in Table 2 in appendix A to this subpart are 
notexceeded.
    (b) Calibrate all equipment and analyzers according to 
thefrequencies shown in Table 2 in appendix A to this subpart.
    (c) Prior to initial use and after major repairs, bench check 
eachanalyzer (see Sec. 91.323).
    (d) Calibrate as specified in Sec. 91.306 andSec. Sec. 91.315 
through 91.322.
    (e) At least monthly, or after any maintenance which could 
altercalibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (seeSec. 91.324(a)).
    (2) Verify that the automatic data collection system (if used)meets 
the requirements found in Table 2 in appendix A to this subpart.
    (3) Check the fuel flow measurement instrument to insure that 
thespecifications in Table 2 in appendix A to this subpart are met.
    (f) Verify that all NDIR analyzers meet the water rejection ratioand 
the CO2 rejection ratio as specified inSec. 91.325.
    (g) Verify that the dynamometer test stand and power 
outputinstrumentation meet the specifications in Table 2 in appendix A 
tothis subpart.



Sec. 91.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for termallystressing the 
test catalyst must be capable of maintaining atemperature of 500 5 [deg]C and 1000 10 [deg]C.
    (b) Evaluation gas composition. (1) A synthetic exhaust gasmixture 
is used for evaluating the effect of thermal stress oncatalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the 
followingcomposition:

------------------------------------------------------------------------
                                                   Volume     Parts per
                  Constituent                     percent      million
------------------------------------------------------------------------
Carbon Monoxide \1\...........................            1  ...........
Oxygen........................................          1.3  ...........
Carbon Dioxide................................            9  ...........
Water Vapor...................................           10  ...........
Sulfur Dioxide................................  ...........           20
Oxides of Nitrogen............................  ...........          280
Hydrogen......................................  ...........         3500
Hydrocarbon \1,2\.............................  ...........         4000
Nitrogen=Balance..............................  ...........  ...........
------------------------------------------------------------------------
\1\ Alternatively, the carbon monoxide and hydrocarbonproportions of the
  mixture may be changed to 1.2% and 4650 ppm,respectively (using on of
  these alternative concentrations requiresthat the other be used
  simultaneously).
\2\ Propylene/propane ratio=2/1.


[61 FR 52102, Oct. 4, 1996; 62 FR 20066, Apr. 24, 1997]

[[Page 336]]



             Sec. Appendix A to Subpart D of Part91--Tables

                                    Table 1--Symbols Used in Subparts Dand E
----------------------------------------------------------------------------------------------------------------
             Symbol                             Term                                    Unit
----------------------------------------------------------------------------------------------------------------
AYM.............................  Final weighted emission test      g/kW-hr
                                   results.
C3 H8...........................  Propane.........................  ............................................
CB..............................  Concentration of emission in      ppm
                                   backgroundsample.
CD..............................  Concentration of emission in      ppm
                                   dilute sample.
CO..............................  Carbon monoxide.................  ............................................
CO2.............................  Carbon dioxide..................  ............................................
conc............................  Concentration (ppm by volume)...  ppm
DX..............................  Density of a specific emission    g/m\3\
                                   (XX).
DXX.............................  Volume concentration of a         percent
                                   specific emission (XX) on a
                                   drybasis.
DF..............................  Dilution factor of dilute
                                   exhaust.
D1..............................  Water vapor mixture               percent
                                   concentration.
f...............................  Engine specific parameter         ............................................
                                   considering atmospheric
                                   conditions.
GAIRD...........................  Intake air mass flow rate on dry  kg/h
                                   basis.
GFuel...........................  Fuel mass flow rate.............  kg/h
GP..............................  Analyzer standard operating       Pa
                                   pressure.
Gs..............................  Mass of carbon measured during a  g
                                   samplingperiod.
H...............................  Absolute humidity (water content  gr/kg
                                   related to dry air).
H2..............................  Hydrogen........................  ............................................
i...............................  Subscript denoting an individual  ............................................
                                   mode.
IT..............................  Indicated torque................  N-m
K...............................  Wet to dry conversion factor....  ............................................
KH..............................  Humidity correction factor......  ............................................
KV..............................  Calibration coefficient for       ............................................
                                   critical flowventuri.
MX..............................  Molecular weight of a specific    g/mole
                                   molecule(XX).
mass............................  Pollutant mass flow.............  g/h
MFUEL...........................  Mass of fuel consumed during a    g
                                   samplingperiod.
N...............................  Pump revolutions during test      revs
                                   period.
N2..............................  Nitrogen........................  ............................................
NO..............................  Nitric oxide....................  ............................................
NO2.............................  Nitrogen dioxide................  ............................................
NOX.............................  Oxides of nitrogen..............  ............................................
O2..............................  Oxygen..........................  ............................................
O2 I............................  Oxygen concentration of the       percent
                                   burner air.
P...............................  Absolute pressure...............  kPa
PAUX............................  Declared total power absorbed by  kW
                                   auxiliariesfitted for the test.
PB..............................  Total barometric pressure         kPa
                                   (average of the pre-testand
                                   post-test values).
Pdew............................  Test ambient saturation vapor     kPa
                                   pressure at thedew point.
Pe..............................  Absolute pump outlet pressure...  kPa
PED.............................  Pressure drop between the inlet   kPa
                                   and throat ofmetering venturi.
Pi..............................  Pi=PM, i +PAUX,i................  ............................................
PM..............................  Maximum power measured at the     kW
                                   test speed undertest conditions.
PP..............................  Absolute pump inlet pressure....  kPa
PPI.............................  Inlet pressure depression of      kPa
                                   venturi or pump.
PPO.............................  Pressure head at CVS pump outlet  kPa
Ps..............................  Dry atmospheric pressure........  kPa
PV..............................  Absolute venturi inlet pressure.  kPa
Pwb.............................  Saturated vapor pressure........  Pa
QC..............................  Volumetric flow rate of dilute    m\3\/hr
                                   exhaust through CVSat STP.
QS..............................  Gas flow rate...................  m\3\/min
RSTP............................  Ideal gas constant at STP.......  m\3\/mole
R2..............................  Fuel carbon weight fraction.....  g/g
STP.............................  Standard temperature and          ............................................
                                   pressure.
t...............................  Elapsed time for test period....  sec.
T...............................  Absolute temperature at air       [deg]C
                                   inlet.
Ta..............................  Ambient temperature.............  [deg]C
TEI.............................  Air temperature in to metering    [deg]C
                                   venturi orflowmeter.
TK..............................  Absolute temperature............  K
TP..............................  Absolute pump inlet temperature.  [deg]C
TPI.............................  Air temperature at CVS pump       [deg]C
                                   inlet.
TPO.............................  Air temperature at CVS pump       [deg]C
                                   outlet.
TV..............................  Absolute venturi inlet            [deg]C
                                   temperature.
VO..............................  Pump flow.......................  m\3\/rev
W...............................  Average mass flow of emissions..  g/hr
WX..............................  Mass rate of specific emission    g/hr
                                   (XX).
WXX.............................  Volume concentration in exhaust   ppm, ppmC, %
                                   of specific emission (XX) onwet
                                   basis.
WF..............................  Weighing factor.................  ............................................

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Z1..............................  Water concentration.............  percent
[alpha].........................  Fuel specific factor
                                   representing the hydrogen to
                                   carbonratio.
----------------------------------------------------------------------------------------------------------------


                               Table 2--MeasurementAccuracy Calibration Frequency
----------------------------------------------------------------------------------------------------------------
                                             Permissibledeviation from reading \1\
     No.                Item          --------------------------------------------------   Calibrationfrequency
                                               non-idle                   idle
----------------------------------------------------------------------------------------------------------------
1...........  Engine speed...........  2%.                   eq>2%.
2...........  Torque.................  5%.
3...........  Fuel consumption.......  1%.                   eq>5%.
4...........  Air consumption........  2%.                   eq>5%.
5...........  Coolant temperature....  2  Same...................  As required.
                                        [deg]C.
6...........  Lubricant temperature..  2  Same...................  As required.
                                        [deg]C.
7...........  Exhaust back pressure..  5%.
8...........  Inlet depression.......  5%.
9...........  Exhaust gas temperature  15 [deg]C.
10..........  Air inlet temperature    2[deg]C.
11..........  Atmospheric pressure...  0.5%.
12..........  Humidity (combustion     3.0%.
13..........  Fuel temperature.......  2  Same...................  As required.
                                        [deg]C.
14..........  Temperature with regard  2[deg]C.
15..........  Dilution air humidity..  3% absolute.
16..........  HC analyzer............  2% \2\.
17..........  CO analyzer............  2% \2\.
18..........  NOXanalyzer............  2% \2\.
19..........  NOX converter check....  90%....................  Same...................  Monthly.
20..........  CO2analyzer............  2% \2\.
----------------------------------------------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recordedvalue which is inclusive of the data acquisition
  system.
\2\ If reading is under 100 ppm then the accuracy shall be2 ppm.


                    Table 3--Test Fuel Specifications
------------------------------------------------------------------------
                                                              Procedure
               Item                  Property    Tolerance    (ASTM) \1\
------------------------------------------------------------------------
Sulfur, ppm max..................         1000  ...........       D 2622
Benzene, max. percent............          1.5  ...........       D 3606
RVP, psi.........................          8.6       
             Sec. Appendix B to Subpart D of Part91--Figures

[GRAPHIC] [TIFF OMITTED] TR04OC96.013


[[Page 339]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.014


[[Page 340]]





                Subpart E_Gaseous Exhaust Test Procedures



Sec. 91.401  Scope; applicability.

    (a) This subpart describes the procedures to follow in order 
toperform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A 
ofthis part 91. Provisions specific to raw gas sampling are inSec. Sec. 
91.414 through 91.419, provisions specific toconstant volume sampling 
are in Sec. Sec. 91.420 through91.426. All other sections in this 
subpart apply to both raw gassampling and constant volume sampling 
unless indicated otherwise.
    (b) Requirements for emission test equipment and calibrating 
thisequipment are found in subpart D of this part.



Sec. 91.402  Definitions.

    The definitions in Sec. Sec. 91.3, 91.102, and 91.302apply to this 
subpart.



Sec. 91.403  Symbols and abbreviations.

    (a) The abbreviations in Sec. 91.5 apply to thissubpart.
    (b) The symbols in Table 1 in appendix A to subpart D apply tothis 
subpart.



Sec. 91.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine 
operatingconditions to be conducted on an engine dynamometer or 
equivalent loadand speed measurement device. The exhaust gases generated 
duringengine operation are sampled either raw or dilute, and 
specificcomponents are analyzed through the analytical system.
    (b) The tests are designed to determine the brake-specificemissions 
of hydrocarbons, carbon monoxide, and oxides of nitrogen.The test 
consists of one idle mode and four power modes with anexponential 
relationship between torque and speed which span thetypical operating 
range of spark-ignition marine propulsion engines.These procedures 
require the determination of the concentration ofeach pollutant, fuel 
flow, and the power output during each mode. Themeasured values are 
weighted and used to calculate the grams of eachpollutant emitted per 
brake kilowatt hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the 
completeengine is tested, with all emission control devices installed 
andfunctioning.
    (2) Additional accessories (for example, oil cooler, alternators,and 
so forth) may be installed, but such accessory loading will beconsidered 
parasitic in nature and observed power is used in theemission 
calculation.
    (d) All emission control systems installed on or incorporated inthe 
application must be functioning during all procedures in thissubpart. In 
cases of component malfunction or failure, no maintenanceis allowed 
without prior approval from the Administrator in accordancewith Sec. 
91.118.



Sec. 91.405  Recorded information.

    (a) Record the information described in this section for each 
testwhere applicable.
    (b) Test data; general. (1) Engine identification number.
    (2) Engine emissions control system.
    (3) Test operator(s).
    (4) Number of hours of operation accumulated on the engine priorto 
beginning the warm-up portion of the test (to the nearest tenthhour).
    (5) Fuel identification.
    (6) For two-stroke engines, fuel/oil mixture ratio.
    (7) Date of most recent analytical assembly calibration.
    (8) All pertinent instrument information such as tuning, gain,serial 
numbers, detector number, and calibration curve numbers. Aslong as this 
information is traceable, it may be summarized by systemnumber or 
analyzer identification numbers.
    (c) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Barometric pressure; as an option, barometric pressure can 
bemeasured as a modal measurement instead of or in addition to a pre-and 
post-test measurement.
    (4) Recorder chart or equivalent. Identify for each test segmentzero 
traces for each range used, and span traces for each range used.
    (d) Test data; modal. (1) Recorder chart or equivalent.Identify for 
each

[[Page 341]]

test mode the emission concentration traces andthe associated analyzer 
range(s).
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Engine intake air flow, if applicable.
    (5) Test cell temperature and humidity for each mode.
    (6) For raw gas testing; fuel flow for each mode. Fuel 
flowmeasurement is not required for dilute testing but is allowed. If 
thefuel flow measurement is a volume measurement system, record the 
fueltemperature in the measurement system for fuel density corrections 
tothe mass flow rate. If the fuel temperature is within 3 [deg]C of 
thecalibration temperature, no density correction is required.
    (7) Engine intake temperature and humidity for each mode, 
ifapplicable.
    (8) Exhaust sample line temperature, if applicable.
    (e) Test data; post-test. (1) Recorder chart or equivalent.Identify 
the hang-up check.
    (2) Recorder chart or equivalent. Identify the zero traces foreach 
range used and the span traces for each range used.
    (3) Total number of hours of operation accumulated on the engine(to 
the nearest tenth hour).
    (4) Barometric pressure, post-test segment.



Sec. 91.406  Engine parameters to be measured and recorded.

    Measure or calculate, then record, the engine parameters in Table1 
in appendix A of this subpart.



Sec. 91.407  Engine inlet and exhaust systems.

    (a) The marine engine manufacturer is liable for emissioncompliance 
over the full range of restrictions that are specified bythe 
manufacturer for that particular engine.
    (b) The air inlet filter system and exhaust muffler 
systemcombination used on the test engine must be the systems expected 
toyield the highest emission levels.



Sec. 91.408  Pre-test procedures.

    (a) Engine service accumulation and stabilization procedure.Use the 
service accumulation procedure determined by the manufacturerfor exhaust 
emission stabilizing of an engine, consistent with goodengineering 
practice (see Sec. 91.117).
    (1) The manufacturer determines, for each engine family, thenumber 
of hours at which the engine exhaust emission control systemcombination 
is stabilized for emission testing. However, thisstabilization procedure 
may not exceed 12 hours. The manufacturer mustmaintain, and provide to 
the Administrator upon request, a record ofthe rationale used in making 
this determination. If the manufacturercan document that, at some time 
prior to the full 12 hour serviceaccumulation period, the engine 
emissions are decreasing for theremainder of the 12 hours, the service 
accumulation may be completedat that time. The manufacturer may elect to 
accumulate 12 hours oneach test engine within an engine family without 
making thisdetermination.
    (2) During service accumulation, the fuel and lubricants specifiedin 
Sec. 91.308 must be used.
    (3) Engine maintenance during service accumulation is allowed onlyin 
accordance with Sec. 91.117.
    (b) Engine pre-test preparation. (1) Drain and charge thefuel 
tank(s) with the specified test fuel (see Sec. 91.308)to 50 percent of 
the tank's nominal capacity. If an external fuel tankis used, the engine 
fuel inlet system pressure must be typical of whatthe engine will see in 
use.
    (2) Operate the engine on the dynamometer measuring the 
fuelconsumption (fuel consumption required only for raw gas 
samplingmethod) and torque before and after the emission sampling 
equipment isinstalled, including the sample probe, using mode 1 from 
Table 2 inappendix A of this subpart. The emission sampling equipment 
may notsignificantly affect the operational characteristics of the 
engine(typically, the results should agree within five percent).
    (c) Analyzer pre-test procedures. (1) If necessary, warm upand 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then vacuum leakcheck 
the

[[Page 342]]

system per Sec. 91.324(a). If necessary,allow the heated sample line, 
filters, and pumps to reach operatingtemperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated 
FIDsample line temperature must be maintained between 110 [deg]C and 
230[deg]C, a heated NOX sample line temperature must 
bemaintained between 60 [deg]C and 230 [deg]C.
    (ii) Check that the system response time has been accounted forprior 
to sample collection data recording.
    (iii) A hang-up check is permitted.
    (4) Check analyzer zero and span before and after each test at 
aminimum. Further, check analyzer zero and span any time a range 
changeis made or at the maximum demonstrated time span for stability 
foreach analyzer used.
    (d) Check system flow rates and pressures and reset if necessary.



Sec. 91.409  Engine dynamometer test run.

    (a) Engine and dynamometer start-up.
    (1) Only adjustments in accordance with Sec. 91.118 maybe made to 
the test engine prior to starting a test.
    (2) If necessary, warm up the dynamometer as recommended by 
thedynamometer manufacturer ore good engineering practice.
    (3) At the manufacturer's option, the engine can be run with 
thethrottle in a fixed position or by using the engine's governor (if 
theengine is manufactured with a governor). In either case, the 
enginespeed and load must meet the requirements specified in paragraph 
(b)(12) of this section.
    (b) Each test consists of the following:
    (1) Record the general test data as specified inSec. 91.405.
    (2) Precondition the engine in the following manner;
    (i) Operate the engine at idle for 2 to 3 minutes;
    (ii) Operate the engine at a power greater than or equal to 
50percent power at the rated speed for 5 to 7 minutes;
    (iii) Operate the engine at rated speed and maximum power for 25to 
30 minutes;
    (iv) Option. For four-stroke engines, where appropriate, it 
ispermitted to precondition the engine at rated speed and maximum 
poweruntil the oil and water temperatures are stabilized. The 
temperaturesare defined as stabilized if they are maintained within 2 
percent ofpoint for 2 minutes. The engine must be operated a minimum of 
10minutes for this option. This optional procedure may be substitutedfor 
step in paragraphs (b)(2)(iii) of this section;
    (v) Option. If the engine has been operating on serviceaccumulation 
for a minimum of 40 minutes, the service accumulation maybe substituted 
for steps in paragraphs (b)(2) (i) through (iii) ofthis section.
    (3) Record all pre-test data specified inSec. 91.405(c).
    (4) Start the test cycle (see Sec. 91.410) within 10minutes of the 
completion of the steps required by paragraph (b)(2) ofthis section.
    (5) During the first mode calculate the torque corresponding to71.6, 
46.5, and 25.3 percent of the maximum observed torque for therated speed 
(see Table 2 in appendix A of this subpart).
    (6) Once engine speed and load are set for a mode, run the enginefor 
a sufficient period of time to achieve thermal stability. At 
themanufacturers option, determine and document the appropriate 
criterionfor thermal stability for each engine family.
    (7) Record all modal data specified in Sec. 91.405(e)for a minimum 
time period of the last two minutes of each mode. Longeraveraging 
periods are acceptable, but the data averaged must be from acontinuous 
time period. The duration of time during which this data isrecorded is 
referred to as the ``sampling period.'' Thedata collected during the 
sampling period is used for modal emissioncalculations.
    (8) Continuously record the analyzer's response to the exhaust 
gasduring the sampling period.
    (9) Modes may be repeated.
    (10) If a delay of more than one hour occurs between the end ofone 
mode and the beginning of another mode, the test is void and mustbe 
restarted as described at paragraph (b)(1) of this section.
    (11) The engine speed and load must be maintained within 
therequirements

[[Page 343]]

of Sec. 91.410 during the sampling periodfor each mode. If this 
requirement is not met, the mode is void andmust be restarted.
    (12) If at any time during a mode, the test equipment malfunctionsor 
the specifications in Sec. 91.410 can not be met, thetest is void, and 
must be aborted. Corrective action should be takenand the test 
restarted.
    (13) Fuel flow and air flow during the idle condition may 
bedetermined just prior to or immediately following the 
dynamometersequence, if longer times are required for accurate 
measurements. Ifthe dilute sampling method (Constant Volume Sampling) is 
used, neitherfuel flow nor air flow measurements are required.
    (c) Exhaust gas measurements. (1) Measure HC, CO, CO2,and 
NOX concentration in the exhaust sample.
    (2) Each analyzer range that may be used during a test segmentmust 
have the zero and span responses recorded prior to the start ofthe test. 
Only the range(s) used to measure the emissions during thetest is 
required to have its zero and span recorded after thecompletion of the 
test. Depending on the stability of each individualanalyzer, more 
frequent zero checks or spans between modes may benecessary.
    (3) It is permitted to change filter elements between testsegments.
    (4) A leak check is permitted between modes.
    (5) A hang-up check is permitted between modes (seeSec. 91.413).
    (6) If, during the emission measurement portion of a mode, thevalue 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (SeeFigure 1 
in appendix B of subpart D of this part) differs by more than0.5 kPa, the mode is void.



Sec. 91.410  Engine test cycle.

    (a) The 5-mode cycle specified in Table 2 in appendix A to 
thissubpart shall be followed in dynamometer operation tests of 
marineengines.
    (b) During each non-idle mode the specified speed and load shallbe 
held to within 50 rpm or 2 
percent of point,whichever is greater. During each idle mode the engine 
speed shall beheld within 75 rpm or 5 percent of the manufacturersspecified idle speed, 
whichever is greater. For direct drive products(no neutral gear), it is 
acceptable to have an accessory load on theengine during the idle mode 
provided that the engine speed is within5 percent 
of the manufacturers specified idle speed and theaccessory load is 
representative of in use operation.
    (c) If the operating conditions specified in paragraph (b) of 
thissection for modes 2, 3, 4, and 5 cannot be maintained, 
theAdministrator may authorize deviations from the specified 
loadconditions. Such deviations shall not exceed 10 percent of the 
maximumtorque at the test speed. The minimum deviations, above and below 
thespecified load, necessary for stable operation shall be determined 
bythe manufacturer and approved by the Administrator prior to the 
testrun.
    (d) Do not include power generated during the idle mode (mode 5)in 
the calculation of emissions results.



Sec. 91.411  Post-test analyzer procedures.

    (a) Perform a hang-up check within 60 seconds of the completion 
ofthe last mode in the test. Use the following procedure:
    (1) Introduce a zero-grade gas or room air into the sample probeor 
valve V2 (see Figure 1 in appendix B of subpart D of this part) tocheck 
the ``hangup zero'' response. Simultaneously start atime measurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement 
inparagraph (a)(1) of this section, the difference between the zero 
gasresponse and the hang-up zero response shall not be greater than 
5.0percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within six minutes after 
thecompletion of the last mode in the test. Record for each analyzer 
thezero and span response for each range used during the preceding 
testor test segment.
    (c) If during the test, the filter element(s) were replaced 
orcleaned, a vacuum check must be performed per Sec. 
91.324(a)immediately after the span checks. If the vacuum side leak 
check doesnot meet the requirements of Sec. 91.324(a) the test isvoid.

[[Page 344]]

    (d) Read and record the post-test data specified inSec. 91.405(e).
    (e) For a valid test, the analyzer drift between the before-segment 
and after-segment span checks for each analyzer must meet thefollowing 
requirements:
    (1) The span drift (defined as the change in the differencebetween 
the zero response and the span response) must not exceed twopercent of 
full-scale chart deflection for each range used.
    (2) The zero response drift must not exceed two percent of full-
scale chart deflection for each range used above 155 ppm (or ppm C),or 
three percent of full-scale chart deflection for each range below155 ppm 
(or ppm C).



Sec. 91.412  Data logging.

    (a) A computer or any other automatic data collection (ADC)device(s) 
may be used as long as the system meets the requirements ofthis subpart.
    (b) Determine from the data collection records the analyzerresponses 
corresponding to the end of each mode.
    (c) Record data at a minimum of one Hz (one time per second).
    (d) Determine the final value for power by averaging theindividually 
calculated power points for each value of speed andtorque recorded 
during the sampling period. As an alternative, thefinal value for power 
can be calculated from the average values forspeed and torque, collected 
during the sampling period.
    (e) Determine the final value for CO2, CO, HC, 
andNOX concentrations by averaging the concentration of 
eachpoint taken during the sample period for each mode.



Sec. 91.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The 
analyzerresponse may be read by automatic data collection (ADC) 
equipment suchas computers, data loggers, etc. If ADC equipment is used 
thefollowing is required:
    (1) For dilute grab (``bag'') analysis, the analyzerresponse must be 
stable at greater than 99 percent of the finalreading for the dilute 
exhaust sample bag. A single value representingthe average chart 
deflection over a 10-second stabilized period shallbe stored.
    (2) For continuous analysis systems, a single value representingthe 
average integrated concentration over a cycle shall be 
stored.Alternatively, the ADC may store the individual instantaneous 
valuescollected during the measurement period.
    (3) The chart deflections or average integrated 
concentrationsrequired in paragraphs (a)(1) and (a)(2) of this section 
may be storedon long-term computer storage devices such as computer 
tapes, storagediscs, punch cards, and so forth, or they may be printed 
in a listingfor storage. In either case a chart recorder is not required 
andrecords from a chart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the 
ADCequipment is subject to the calibration specifications of the 
analyzeras if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may 
bestored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysis performthe 
following sequence:
    (1) Calibrate analyzers using the procedure described inSec. 
91.326.
    (2) Record the most recent zero and span response as the pre-
analysis value.
    (3) Measure HC, CO, CO2, and NOXbackground 
concentrations in the sample bag(s) and background samplebag(s) using 
the same flow rates and pressures.
    (4) Good engineering practice dictates that analyzers used 
forcontinuous analysis should be operated such that the 
measuredconcentration falls between 15 percent and 100 percent of full 
scale.
    (5) A post-analysis zero and span check of each range must 
beperformed and the values recorded. The number of events that may 
occurbetween the pre and post checks is not specified. However, 
thedifference between pre-analysis zero and span values (recorded 
inparagraph (c)(5) or (c)(6) of this section) versus those recorded 
forthe post-analysis check may not exceed the zero drift limit or 
thespan drift limit

[[Page 345]]

of 2 percent of full scale chart deflection forany range used. Otherwise 
the test is void.
    (d) Continuous sample analysis. For continuous sample 
analysis,perform the following sequence:
    (1) Calibrate analyzers using the procedures described inSec. 
91.326.
    (2) Leak check portions of the sampling system that operate 
atnegative gauge pressures when sampling, and allow heated sample 
lines,filters, pumps, and so forth to stabilize at operating 
temperature.
    (3) Option: Determine the hang-up for the FID or HFID 
samplingsystem:
    (i) Zero the analyzer using zero air introduced at the analyzerport.
    (ii) Flow zero air through the overflow sampling system. Check 
theanalyzer response.
    (iii) If the overflow zero response exceeds the analyzer 
zeroresponse by two percent or more of the FID or HFID full-
scaledeflection, hang-up is indicated and corrective action must be 
taken(see paragraph (e) of this section).
    (iv) The complete system hang-up check specified in paragraph (f)of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Good engineering practice dictates that analyzers used 
forcontinuous analysis should be operated such that the 
measuredconcentration falls between 15 percent and 100 percent of full 
scale.
    (6) Record the most recent zero and span response as the pre-
analysis values.
    (7) Collect background HC, CO, CO2, andNOX in 
a sample bag (for dilute exhaust sampling only, seeSec. 91.422).
    (8) Perform a post-analysis zero and span check for each rangeused 
at the conditions specified in paragraph (d)(1) of this section.Record 
these responses as the post-analysis values.
    (9) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 
threepercent for HC, or two percent for NOX. CO, 
andCO2, of full scale chart deflection, or the test is 
void.(If the HC drift is greater than three percent of full-scale 
chartdeflection, hydrocarbon hang-up is likely.)
    (10) Determine background levels of NOX. CO, 
orCO2 (for dilute exhaust sampling only) by the grab(``bag'') 
technique outlined in paragraph (c) of thissection.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, the 
followingsequence may be performed:
    (1) Fill a clean sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzerports.
    (4) Analyze the background air through the entire sample 
probesystem.
    (5) If the difference between the readings obtained is two ppm 
ormore, clean the sample probe and the sample line.
    (6) Reassemble the sample system, heat to specified temperature,and 
repeat the procedure in paragraphs (e)(1) through (e)(5) of thissection.



Sec. 91.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analyticalsystem 
which may be used for testing under this subpart is shown inFigure 4 in 
appendix B of this subpart. All components or parts ofcomponents that 
are wetted by the sample or corrosive calibrationgases shall be either 
chemically cleaned stainless steel or inertmaterial (e.g., 
polytetrafluoroethylene resin). The use of``gauge savers'' or 
``protectors'' withnonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe shall be a straight, 
closedend, stainless steel, multi-hole probe. The inside diameter shall 
notbe greater than the inside diameter of the sample line + 0.03 cm. 
Thewall thickness of the probe shall not be greater than 0.10 cm. 
Thefitting that attaches the probe to the exhaust pipe shall be as 
smallas practical in order to minimize heat loss from the probe.
    (2) The probe shall have a minimum of three holes. The spacing ofthe 
radial planes for each hole in the probe must be such that theycover 
approximately equal cross-sectional areas of

[[Page 346]]

the exhaustduct. The angular spacing of the holes must be approximately 
equal.The angular spacing of any two holes in one plane may not be 
180[deg]20[deg] (i.e., section C-C of Figure 1 in 
appendix B of thissubpart). The holes should be sized such that each has 
approximatelythe same flow. If only three holes are used, they may not 
all be inthe same radial plane.
    (3) The exhaust gas probe must be located in a position whichyields 
a well mixed, homogeneous sample of the engine exhaust. Theprobe must 
extend radially through the exhaust duct prior to where theexhaust mixes 
with the cooling water. The cooling water flow may bererouted if 
necessary to obtain an emission sample provided that themodification has 
no significant effect on the performance or emissionscharacteristics of 
the engine. The probe must pass through theapproximate center and must 
extend across at least 80 percent of thediameter of the duct. The exact 
position of the probe may vary fromengine family to engine family.
    (c) Sample transfer line. (1) The maximum inside diameter of 
thesample line shall not exceed 1.32 cm.
    (2) If valve V2 in Figure 1 of appendix B of Subpart D of thispart 
is used, the sample probe must connect directly to valve V2 inFigure 1 
of appendix B of subpart D of this part. The location ofoptional valve 
V2 may not be greater than 1.22 m from the exhaustduct.
    (3) The location of optional valve V16 in Figure 1 of appendix Bof 
subpart D of this part may not be greater than 61 cm from thesample 
pump. The leakage rate for this section on the pressure side ofthe 
sample pump may not exceed the leakage rate specification for thevacuum 
side of the pump.
    (d) Venting. All vents including analyzer vents, bypass flow, 
andpressure relief vents of regulators should be vented in such a 
mannerto avoid endangering personnel in the immediate area.
    (e) Any variation from the specifications in this subpartincluding 
performance specifications and emission detection methodsmay be used 
only with prior approval by the Administrator.
    (f) Additional components, such as instruments, valves, 
solenoids,pumps, switches, and so forth, may be employed to provide 
additionalinformation and coordinate the functions of the component 
systems.
    (g) The following requirements must be incorporated in each 
systemused for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe 
andsplit it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipeto 
the HC analyzer for the raw gas sampling method as indicated inFigure 1 
in appendix B of subpart D of this part. The NOXanalyzer for 
the raw gas sampling method may be heated as indicated inFigure 1 in 
appendix B of subpart D of this part. The HC analyzer andthe 
NOX analyzer for the dilute sampling method may beheated as 
indicated in Figure 1 in appendix B of subpart D of thispart.



Sec. 91.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extractsolid 
particles from the flow of gas required for analysis. The sampleline for 
HC measurement must be heated. The sample line for CO,CO2, 
and NOX may be heated or unheated.



Sec. 91.416  Intake air flow measurement specifications.

    (a) If used, the engine intake air flow measurement method usedmust 
have a range large enough to accurately measure the air flow overthe 
engine operating range during the test. Overall measurementaccuracy must 
be 2 percent of full-scale value of themeasurement 
device for all modes except the idle mode. For the idlemode, the 
measurement accuracy shall be 5 percent or less 
ofthe full-scale value. The Administrator must be advised of the 
methodused prior to testing.
    (b) When an engine system incorporates devices that affect the 
airflow measurement (such as air bleeds, air injection, pulsed air, 
andso forth) that result in understated exhaust emission results, 
makecorrections to the exhaust emission results to account for 
sucheffects.

[[Page 347]]



Sec. 91.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing but 
isallowed for dilute testing.
    (b) The fuel flow rate measurement instrument must have a 
minimumaccuracy of 2 percent of full-scale flow 
rate for eachmeasurement range used.



Sec. 91.418  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emissions recording, record 
thelast two minutes of each mode and determine the average values for 
HC,CO, CO2, and NOX during each mode from 
theaverage concentration readings determined from the 
correspondingcalibration data.



Sec. 91.419  Raw emission sampling calculations.

    (a) Derive the final test results through the steps described inthis 
section.
    (b) Air and fuel flow method. If both air and fuel flow mass 
ratesare measured, the following equations are used to determine 
theweighted emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR04OC96.015

Where:

WHC = Mass rate of HC in exhaust [g/hr],
GAIRD = Intake air mass flow rate on dry basis [g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in theexhaust; see 
the following equation:
MHCexh = 12.01 + 1.008 x [alpha]
Where:

[alpha]=Hydrocarbon/carbon atomic ratio of the fuel.
Mexh=Molecular weight of the total exhaust; see thefollowing 
equation:
[GRAPHIC] [TIFF OMITTED] TR08NO02.001

Where:

WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in theexhaust, 
wet

[[Page 348]]

DCO2 = CO2 percent concentration inthe exhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust,wet
K = correction factor to be used when converting dry measurementsto a 
wet basis. Therefore, wet concentration = dry concentrationx K, where K 
is:
[GRAPHIC] [TIFF OMITTED] TR04OC96.018

DH2 = H2 percent concentration in exhaust,dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.019

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity 
onNO2 formation for four-stroke gasoline engines; see 
theequation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.020

Where:

H = specific humidity of the intake air in grams of moisture perkilogram 
of dry air.
    For two-stroke gasoline engines, KH should be set to 1.

    (c) Fuel flow method. The following equations are to be used 
whenfuel flow is selected as the basis for mass emission 
calculationsusing the raw gas method.
[GRAPHIC] [TIFF OMITTED] TR04OC96.021

Where:

WHC = Mass rate of HC in exhaust, [g/hr]
MF = Molecular weight of test fuel; see followingequation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.022

GFUEL = Fuel mass flow rate, [g/hr]
TC = Total carbon; see following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.023

WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in theexhaust, 
wet
DCO2 = CO2 percent concentration in theexhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurementsto a 
wet basis. Therefore, wet concentration = dry concentrationx K, where K 
is:

[[Page 349]]

[GRAPHIC] [TIFF OMITTED] TR04OC96.024

DH2 = H2 percent concentration in exhaust,dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.025

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity 
onNO2 formation for four-stroke gasoline engines; see 
theequation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.026

Where:

H = specific humidity of the intake air in grams of moisture perkilogram 
of dry air.
    For two-stroke gasoline engines, KH should be set to 1.

    (d) The final reported emission test results must be computed 
byusing the following formula for each individual gas component:
[GRAPHIC] [TIFF OMITTED] TR04OC96.027

Where:

Ywm = Weighted mass emission level (HC, CO,NOX) 
for a test [g/kW-hr].
Wi = Average mass flow rate (WHC,WCO, 
WNOx) of an emission from the test engineduring mode i, [g/
hr].
fi = Weighting factors for each mode according toSec. 
91.410(a)
Pi = Average power measured during mode i, [kW],calculated 
according to the formula given in Sec. 91.423(b).Power for the idle 
mode shall always be zero for this calculation.

    (e) The final reported weighted brake-specific fuel 
consumption(WBSFC) shall be computed by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.028

Where:

WBSFC = Weighted brake-specific fuel consumption in grams of fuelper 
kilowatt-hour (g/kW-hr).
Fi = Fuel mass flow rate of the engine during mode i,[g/hr].
fi = Weighting factors for each mode according toSec. 
91.410(a)
Pi = Average power measured during mode i, [kW],calculated 
according to the formula given in Sec. 91.423(b).Power for the idle 
mode shall always be zero for this calculation.

[61 FR 52102, Oct. 4, 1996, as amended at 67 FR 68340, Nov. 8,2002; 70 
FR 40452, July 13, 2005]



Sec. 91.420  CVS concept of exhaust gas sampling system.

    (a) A dilute exhaust sampling system is designed to directlymeasure 
the true mass of emissions in engine exhaust without thenecessity of 
measuring either fuel flow or intake air flow. This isaccomplished by 
diluting the exhaust produced by an engine under testwith ambient 
background air and measuring the total diluted exhaustflow rate and the 
concentration of emissions within the dilute flow.Total mass flow of an 
emission is then easily calculated.
    (b) A constant volume sampler (CVS) is typically used to controlthe 
total amount of dilute flow through the system. As the nameimplies, a 
CVS restricts flow to a known value dependent only on thedilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consistof: 
A mixing tunnel into which the engine exhaust and dilutant(background) 
air are dumped; a dilute exhaust flow metering system; adilute exhaust 
sample port; a background sample port; a dilute exhaustsampling system; 
and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructedsuch that 
complete mixing of the engine exhaust and background air isassured prior 
to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flowmetering 
system must be used to control the total flow

[[Page 350]]

rate ofthe dilute engine exhaust as described in Sec. 91.421.
    (3) Exhaust sample port. A dilute exhaust sample port mustbe located 
in or downstream of the mixing tunnel at a point wherecomplete mixing of 
the engine exhaust and background air is assured.
    (4) Background sample port. A dilute background sample portmust be 
located in the stream of background air before it is mixedwith the 
engine exhaust. The background probe must draw arepresentative sample of 
the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust samplingsystem 
controls the flow of samples from the mixing tunnel to theanalyzer 
system. This could be either a continuous sampling system orgrab (bag) 
sampling system. If a critical flow venturi (CFV) is usedon the dilute 
exhaust sample probe, this system must assure that thesample CFV is in 
choke flow during testing. If no CFV is used, thissystem must assure a 
constant volumetric flow rate through the diluteexhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background samplingsystem 
controls the flow of samples from the background air supply tothe 
analyzer system. This could be either a continuous sampling systemor 
grab (bag) sampling system. This system must assure a constantvolumetric 
flow rate through the background sample probe.



Sec. 91.421  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described in 
thissection is designed to measure the true mass emissions of 
engineexhaust. This system utilizes the Constant volume Sampling 
(CVS)concept (described in Sec. 91.420) of measuring massemissions of 
HC, NOX. CO, and CO2. Grabsampling for individual 
modes is an acceptable method of dilutetesting for all constituents, HC, 
NOX. CO, andCO2. Continuous dilute sampling is not 
required for any ofthe exhaust constituents, but is allowable for all. 
Heated sampling isnot required for any of the constituents, but is 
allowable for HC andNOX. The mass of gaseous emissions is 
determined from thesample concentration and total flow over the test 
period. As anoption, the measurement of total fuel mass consumed over a 
cycle maybe substituted for the exhaust measurement of CO2. 
Generalrequirements are as follows:
    (1) This sampling system requires the use of a PositiveDisplacement 
Pump--Constant Volume Sampler (PDP-CVS) system witha heat exchanger, or 
a Critical Flow Venturi--Constant VolumeSampler (CFV-CVS) system with 
CVS sample probes and/or a heatexchanger or electronic flow 
compensation. Figure 2 in appendix B ofthis subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 inappendix B of this subpart is 
a schematic drawing of the CFV-CVSsystem.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 orFigure 3 in 
appendix B of this subpart) and analytical capabilities(see Sec. 
91.423, and Figure 4 in appendix B of thissubpart), or
    (ii) Continuously integrated measurement of diluted HC meeting 
theminimum requirements and technical specifications contained 
inparagraph (b)(2) of this section.
    (iii) The dilute HC analytical system for marine spark-
ignitionengines does not require a heated flame ionization detector 
(HFID).
    (iv) If used, the HFID sample must be taken directly from thediluted 
exhaust stream through a heated probe and integratedcontinuously over 
the test cycle.
    (v) The heated probe must be located in the sampling system 
farenough downstream of the mixing area to ensure a uniform 
sampledistribution across the CVS duct at the sampling zone.
    (3) The CO and CO2 analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 orFigure 3 in 
appendix B of this subpart) and analytical capabilities(see Sec. 
91.423, and Figure 4 in appendix B of thissubpart), or
    (ii) Continuously integrated measurement of diluted CO 
andCO2 meeting

[[Page 351]]

the minimum requirements and technicalspecifications contained in 
paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 orFigure 3 in 
appendix B of this subpart) and analytical capabilities(see Sec. 
91.423, and Figure 4 in appendix B of thissubpart), or
    (ii) A continuously integrated measurement of dilutedNOX 
meeting the minimum requirements and technicalspecifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent 
results,exact conformance with these drawings is not required. 
Additionalcomponents such as instruments, valves, solenoids, pumps, and 
switchesmay be used to provide additional information and coordinate 
thefunctions of the component systems. Other components, such 
assnubbers, which are not needed to maintain accuracy on some 
systems,may be excluded if their exclusion is based upon good 
engineeringjudgment.
    (6) Other sampling and/or analytical systems may be used if shownto 
yield equivalent results and if approved in advance by theAdministrator.
    (b) Component description. The components necessary for 
exhaustsampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to allof the 
requirements listed for the exhaust gas PDP-CVS inSec. 91.420 of this 
chapter. The CFV-CVS must conform to allof the requirements listed for 
the exhaust gas CFV-CVS inSec. 91.420. In addition, the CVS must 
conform to thefollowing requirements:
    (i) The flow capacity of the CVS must be sufficient to maintainthe 
diluted exhaust stream in the dilution system at a temperature of190 
[deg]C or less at the sampling zone for hydrocarbon measurementand as 
required to prevent condensation at any point in the dilutionsystem. 
Gaseous emission samples may be taken directly from thissampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic 
flowcompensation is required (see Figure 3 in appendix B of this 
subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gasmixture 
temperature, measured at a point immediately ahead of thecritical flow 
venturi, must be within 11 [deg]C of theaverage 
operating temperature observed during the test with thesimultaneous 
requirement that condensation does not occur. Thetemperature measuring 
system (sensors and readout) must have anaccuracy and precision of 
2 [deg]C. For systems utilizing aflow compensator 
to maintain proportional flow, the requirement formaintaining constant 
temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HCsample 
system (as shown in Figure 2 or 3 in appendix B of thissubpart) uses an 
``overflow'' zero and span system. Inthis type of system, excess zero or 
span gas spills out of the probewhen zero and span checks of the 
analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous 
HCsample probe, line, or system, unless a common sample pump is used 
forall analyzers and the sample line system design reflects 
goodengineering practice.
    (iii) The overflow gas flow rates into the sample line must be 
atleast 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close 
aspractical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (whichfor 
a HFID analyzer must raise the sample to the specifiedtemperature) and, 
where used, a sample transfer system (which for aHFID must maintain the 
specified temperature). The HFID continuoushydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190 11 
[deg]C asmeasured at every separately controlled heated component (that 
is,filters, heated line sections), using permanent thermocouples 
locatedat each of the separate components.
    (B) Have a wall temperature of 190 11 [deg]C 
over itsentire length. The temperature of the system is demonstrated 
byprofiling the thermal characteristics of the system where possible 
atinitial installation and after any major maintenance performed on 
thesystem.

[[Page 352]]

The profiling is to be accomplished using the insertionthermocouple 
probing technique. The system temperature must bemonitored continuously 
during testing at the locations and temperaturedescribed in Sec. 
91.421(b)(2).
    (C) Maintain a gas temperature of 190 11 
[deg]Cimmediately before the heated filter and HFID. Determine these 
gastemperatures by a temperature sensor located immediately upstream 
ofeach component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the 
continuoushydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where thedilution 
air and exhaust are well mixed and provide a homogenousmixture.
    (D) Is sufficiently distant (radially) from other probes and 
thesystem wall so as to be free from the influence of any wakes 
oreddies.
    (E) For a continuous HFID sample probe, the probe must increasethe 
gas stream temperature to 190 11 [deg]C at the 
exit ofthe probe. Demonstrate the ability of the probe to accomplish 
thisusing the insertion thermocouple technique at initial installation 
andafter any major maintenance. Demonstrate compliance with 
thetemperature specification by continuously recording during each 
testthe temperature of either the gas stream or the wall of the 
sampleprobe at its terminus.
    (vii) The response time of the continuous measurement system mustbe 
taken into account when logging test data.
    (3) Sample mixing. (i) configure the dilution system toensure a well 
mixed, homogeneous sample prior to the samplingprobe(s).
    (ii) Make the temperature of the diluted exhaust stream inside 
thedilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where itis 
introduced into the dilution system.
    (4) Continuously integrated NOX. CO, andCO2 
measurement systems. (i) Sample proberequirements:
    (A) The sample probe for continuously integrated NOX.CO, 
and CO2 must be in the same plane as the continuous HCprobe, 
but sufficiently distant (radially) from other probes and thetunnel wall 
so as to be free from the influences of any wakes oreddies.
    (B) The sample probe for continuously integrated NOX.CO, 
and CO2 must be heated and insulated over the entirelength, 
to prevent water condensation, to a minimum temperature of 55[deg]C. 
Sample gas temperature immediately before the first filter inthe system 
must be at least 55 [deg]C.
    (ii) Conform to the continuous NOX, CO, orCO2 
sampling and analysis system to the specifications of40 CFR 1065.145, 
with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to 
preventwater condensation, the minimum component temperature is 55 
[deg]C.
    (B) Coordinate analysis system response time with CVS 
flowfluctuations and sampling time/test cycle offsets to meet the time-
alignment and dispersion specifications in 40 CFR pat 1065, subpart C.
    (C) Use only analytical gases conforming to the specifications of40 
CFR 1065.750 for calibration, zero, and span checks.
    (D) Use a calibration curve conforming to 40 CFR part 1065,subparts 
C and D, for CO, CO2, and NOX for anyrange on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of 
analyzerswith non-linear calibration curves to concentration values by 
thecalibration curve(s) specified in 40 CFR part 1065, subpart D, 
beforeflow correction (if used) and subsequent integration takes place.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July13, 2005]



Sec. 91.423  Exhaust gas analytical system; CVS grab sample.

    (a) Schematic drawings. Figure 4 in appendix B of thissubpart is a 
schematic drawing of the exhaust gas analytical systemused for analyzing 
CVS grab ``bag'' samples from spark-ignition engines. Since various 
configurations can

[[Page 353]]

produceaccurate results, exact conformance with the drawing is not 
required.Additional components such as instruments, valves, solenoids, 
pumpsand switches may be used to provide additional information 
andcoordinate the functions of the component systems. Other 
componentssuch as snubbers, which are not needed to maintain accuracy in 
somesystems, may be excluded if their exclusion is based on 
goodengineering judgement.
    (b) Major component description. The analytical system,Figure 4 in 
Appendix B of this subpart, consists of a flame ionizationdetector (FID) 
or a heated flame ionization detector (HFID) for themeasurement of 
hydrocarbons, nondispersive infrared analyzers (NDIR)for the measurement 
of carbon monoxide and carbon dioxide, and achemiluminescence detector 
(CLD) (or heated CLD (HCLD)) for themeasurement of oxides of nitrogen. 
The exhaust gas analytical systemshall conform to the following 
requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide presentin 
the sample be converted to nitric oxide before analysis. Othertypes of 
analyzers may be used if shown to yield equivalent resultsand if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free 
ofCO2 and water vapor interference, the use of 
theconditioning column may be deleted. (See Sec. Sec. 91.317and 
91.320.)
    (3) A CO instrument will be considered to be essentially free 
ofCO2 and water vapor interference if its response to 
amixture of three percent CO2 in N2, which hasbeen 
bubbled through water at room temperature, produces an equivalentCO 
response, as measured on the most sensitive CO range, which is lessthan 
one percent of full scale CO concentration on ranges above 300ppm full 
scale or less than 3 ppm on ranges below 300 ppm full scale.(See Sec. 
91.317.)
    (c) Alternate analytical systems. Analysis systems meetingthe 
specifications and requirements of this subpart for dilutesampling may 
be used upon approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzersand 
equipment may be used if shown to yield equivalent results and 
ifapproved in advance by the Administrator.



Sec. 91.424  Dilute sampling procedure--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter andrestrictor 
valve. (1) The flowmeter calibration shall be traceable tothe National 
Institute for Standards and Testing (NIST), and willserve as the 
reference value (NIST ``true'' value) for theCVS calibration.)
    Note: In no case should an upstream screen or otherrestriction which 
can affect the flow be used ahead of the flowmeterunless calibrated 
throughout the flow range with such a device.)
    (2) The CVS calibration procedures are designed for use of 
a``metering venturi'' type flowmeter. Large radius orAmerican Society of 
Mechanical Engineers (ASME) flow nozzles areconsidered equivalent if 
traceable to NIST measurements. Othermeasurement systems may be used if 
shown to be equivalent under thetest conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recordedand 
related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS areoutlined 
below. Other procedures yielding equivalent results may beused if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification 
ofthe entire system may be performed by injecting a known mass of 
gasinto the system and comparing the mass indicated by the system to 
thetrue mass injected. An indicated error does not necessarily mean 
thatthe calibration is wrong, since other factors can influence 
theaccuracy of the system (e.g., analyzer calibration, leaks, or 
HChangup). A verification procedure is found in paragraph (e) of 
thissection.
    (c) PDP-CVS calibration. (1) The following calibrationprocedure 
outlines the equipment, the test configuration, and thevarious 
parameters which must be measured to establish the flow rateof the CVS 
pump.
    (i) All the parameters related to the pump are 
simultaneouslymeasured with the parameters related to a flowmeter which 
is connectedin series with the pump.

[[Page 354]]

    (ii) The calculated flow rate, in cm\3\/s, (at pump inletabsolute 
pressure and temperature) can then be plotted versus acorrelation 
function which is the value of a specific combination ofpump parameters.
    (iii) The linear equation which relates the pump flow and 
thecorrelation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, 
acalibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of 
theabsolute values of the pump and flowmeter parameters that relate 
theflow rate at each point. Two conditions must be maintained to 
assurethe accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained duringcalibration. 
(Flowmeters are sensitive to inlet temperatureoscillations; this can 
cause the data points to be scattered. Gradualchanges in temperature are 
acceptable as long as they occur over aperiod of several minutes.)
    (ii) All connections and ducting between the flowmeter and the 
CVSpump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these 
samepump parameters enables the user to calculate the flow rate from 
thecalibration equation.
    (4) Connect a system as shown in Figure 5 in appendix B of 
thissubpart. Although particular types of equipment are shown, 
otherconfigurations that yield equivalent results may be used if 
approvedin advance by the Administrator. For the system indicated, 
thefollowing measurements and accuracies are required:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
                                                                                              Sensor-readout
              Parameter                         Symbol                   Units                  tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)......  PB.....................  kPa....................  0.34 kPa
Ambient temperature..................  TEI....................  [deg]C.................  0.28[deg]C
Air temperature into meteringventuri.  TEI....................  [deg]C.................  1.11 [deg]C
Pressure drop between the inlet and    PED....................  kPa....................  0.012 kPa
Air flow.............................  QS.....................  m\3\/min...............  0.5 percent of
                                                                                          NISTvalue
Air temperature at CVS pumpinlet.....  PTI....................  [deg]C.................  1.11 [deg]C
Pressure depression at CVS pumpinlet.  PPI....................  kPa....................  0.055 kPa
Pressure head at CVS pumpoutlet......  PPO....................  kPa....................  0.055 kPa
Air temperature at CVS pump outlet     PTO....................  [deg]C.................  1.11 [deg]C
 (optional).
Pump revolutions during test period..  N......................  Revs...................  1
                                                                                          Rev.
Elapsed time for test period.........  t......................  s......................  0.5 s.
----------------------------------------------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 
ofappendix B of this subpart, set the variable restrictor in the 
wideopen position and run the CVS pump for 20 minutes. Record 
thecalibration data.
    (6) Reset the restrictor valve to a more restricted condition inan 
increment of pump inlet depression that will yield a minimum of sixdata 
points for the total calibration. Allow the system to stabilizefor 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point 
iscalculated in standard cubic feet per minute 20 [deg]C, 101.3 kPafrom 
the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow,Vo, 
in cubic meter per revolution at absolute pump inlettemperature and 
pressure:
[GRAPHIC] [TIFF OMITTED] TR04OC96.029

Where:

VO=Pump flow, m\3\/rev at TP,PP,
QS=Meter air flow rate in standard cubic meters perminute, 
standard conditions are 20 [deg]C, 101.3 kPa.
n=Pump speed in revolutions per minute.
Tp=Pump inlet temperature in Kelvin,=PTI+273 
[[deg]K].
PP=Absolute pump inlet pressure, kPa.
=PP-PPI

Where:

PP=barometric pressure, kPa.

[[Page 355]]

PPI=Pump inlet depression, kPa.

    (iii) The correlation function at each test point is thencalculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR04OC96.030

Where:

XO=correlation function.
[Delta]\p\ = The pressure differential from pump inlet to pumpoutlet, 
kPa.
=PE-PP.
PE=Absolute pump outlet pressure, [kPa]
=PB+PPO
Where:

PPO=Pressure head at pump outlet, kPa (inches fluid).

    (iv) A linear least squares fit is performed to generate 
thecalibration equation which has the form:

VO = DO - M(XO)

DO and M are the intercept and slope constants,respectively, 
describing the regression line.

    (8) A CVS system that has multiple speeds should be calibrated 
oneach speed used. The calibration curves generated for the ranges 
willbe approximately parallel and the intercept values, DO, will 
increaseas the pump flow range decreases.
    (9) If the calibration has been performed carefully, thecalculated 
values from the equation will be within 0.50percent of the measured value of VO. 
Values of Mwill vary from one pump to another, but values of 
DOfor pumps of the same make, model and range should agree 
withinthree percent of each other. Calibrations 
should be performedat pump start-up and after major maintenance to 
assure the stabilityof the pump slip rate. Analysis of mass injection 
data will alsoreflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based uponthe 
flow equation for a critical venturi.
    (i) Gas flow is a function of inlet pressure and temperature:
    [GRAPHIC] [TIFF OMITTED] TR04OC96.031
    
QS=flow rate [m\3\/min.].
KV=calibration coefficient.
P=absolute pressure [kPa].
TK=absolute temperature [[deg]K].

    (ii) The calibration procedure described in paragraph (d)(3) ofthis 
section establishes the value of the calibration coefficient atmeasured 
values of pressure, temperature and air flow.
    (2) The manufacturer's recommended procedure shall be followed 
forcalibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
              Parameter                         Symbol                   Units                  Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric Pressure (corrected)......  PB.....................  kPa....................  0.34 kPa
Air Temperature into flowmeter.......  TEI....................  [deg]C.................  0.28 [deg]C
Pressure drop between the inlet and    PED....................  kPa....................  0.012 kPa
Air flow.............................  QS.....................  m\3\/min...............  0.5 percent of
                                                                                          NISTvalue
CVS inlet depression.................  PPI....................  kPa....................  0.055 kPa
Pressure head at CVS pumpoutlet......  PPO....................  kPa....................  0.055 kPa
Temperature at venturiinlet..........  TV.....................  [deg]C.................  2.22 [deg]C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in appendix B of 
thissubpart and eliminate leaks. (Leaks between the flow measuring 
devicesand the critical flow venturi will seriously affect the accuracy 
ofthe calibration.)
    (5) Set the variable flow restrictor to the open position, startthe 
blower, and allow the system to stabilize. Record data from 
allinstruments.
    (6) Vary the flow restrictor and make at least eight readingsacross 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are tobe 
used in the following calculations:
    (i) The air flow rate (designated as Qs) at each 
testpoint is calculated in standard cubic feet per minute from

[[Page 356]]

theflow meter data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each 
testpoint:
[GRAPHIC] [TIFF OMITTED] TR04OC96.032

QS=Flow rate in standard cubic meter per minute, atthe 
standard conditions of 20 [deg]C, 101.3 kPa.
TV=Temperature at venturi inlet, [deg]K.
PV=Pressure at venturi inlet, kPA
=PB-PPI

Where:

PPI = Venturi inlet pressure depression, kPa.

    (iii) Plot KV as a function of venturi inlet pressure.For 
choked flow, KV will have a relatively constant value.As 
pressure decreases (vacuum increases), the venturi becomes unchokedand 
KV decreases. (See Figure 7 in appendix B of thissubpart)
    (iv) For a minimum of eight points in the critical regioncalculate 
an average KV and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the 
averageKV, take corrective action.
    (e) CVS system verification. The following``gravimetric'' technique 
can be used to verify that theCVS and analytical instruments can 
accurately measure a mass of gasthat has been injected into the system. 
(Verification can also beaccomplished by constant flow metering using 
critical flow orificedevices.)
    (1) Obtain a small cylinder that has been charged with 99.5percent 
or greater propane or carbon monoxide gas(CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01grams.
    (3) Operate the CVS in the normal manner and release a quantity 
ofpure propane into the system during the sampling period 
(approximatelyfive minutes).
    (4) The calculations are performed in the normal way except in 
thecase of propane. The density of propane (0.6109 kg/m\3\carbon atom 
isused in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured massand 
then divided by the gravimetric mass to determine the percentaccuracy of 
the system.
    (6) Good engineering practice requires that the cause for 
anydiscrepancy greater than 2 percent must be 
found andcorrected.



Sec. 91.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flowventuri 
following initial installation, major maintenance or asnecessary when 
indicated by the CVS system verification (described inSec. 91.424(e)).



Sec. 91.426  Dilute emission sampling calculations.

    (a) The final reported emission test results must be computed byuse 
of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.033

Where:

Awm=Weighted mass emission level (HC, CO,CO2, or 
NOX) for a test [g/kW-hr].
Wi=Average mass flow rate of an emission from a testengine 
during mode i [g/hr].
WFi = Weighting factor for each mode i as defined inSec. 
91.410(a).
Pi = Gross average power generated during mode i 
[kW]calculated from the following equation (power for the idle mode 
shallalways be zero for this calculation):
[GRAPHIC] [TIFF OMITTED] TR04OC96.034

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]
KHi = Humidity correction factor for mode i. Thiscorrection 
factor only affects calculations for NOX and isequal to one 
for all other emissions. KHi is also equal toone for all two-
stroke engines.

    (b) The mass flow rate (Wi) of an emission for mode iis 
determined from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.035

Where:

Qi = Volumetric flow rate of the dilute exhaustthrough the 
CVS at standard conditions [m\3\/hr at STP].

[[Page 357]]

D = Density of a specific emission (DHC,DCO, 
DCO2, DNOx) in the exhaust[g/m\3\].
DFi = Dilution factor of the dilute exhaust duringmode i.
CDi = Concentration of the emission (HC, CO,NOX) 
in the dilute exhaust extracted from the CVS duringmode i [ppm].
CBi = Concentration of the emission (HC, CO,NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetriccalculations made 
for the equations in this section are to becorrected to a standard 
temperature of 20 [deg]C and 101.3 kPa.

    (c) Densities for emissions that are to be measured for this 
testprocedure are:

DHC = 576.8 g/m\3\
DNOX = 1912 g/m\3\
DCO = 1164 g/m\3\
DCO2 = 1829 g/m\3\

    (1) The value of DHC above is calculated based on 
theassumption that the fuel used has a carbon to hydrogen ratio 
of1:1.85. For other fuels, DHC can be calculated from 
thefollowing formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.036

Where:

MHC = Molecular weight of the hydrocarbon moleculedivided by 
the number of carbon atoms in the molecule [g/mole].
RSTP = Ideal gas constant for a gas at STP = 0.024065[m\3\-
mole].

    (2) The idealized molecular weight of the exhaust hydrocarbons,ie., 
the molecular weight of the hydrocarbon molecule divided by thenumber of 
carbon atoms in the molecule, MHC can becalculated from the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.037

Where:

MC = Molecular weight of carbon = 12.01 [g/mole].
MH = Molecular weight of hydrogen = 1.008 [g/mole].
[alpha] = Hydrogen to carbon ratio of the test fuel.

    (3) The value of DNOx above assumes thatNOX in 
entirely in the form of NO2.
    (d) The dilution factor (DF) is the ratio of the volumetric flowrate 
of the background air to that of the raw engine exhaust. Thefollowing 
formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR04OC96.038

Where:

CDHC = Concentration of HC in the dilute sample [ppm].
CDCO = Concentration of CO in the dilute sample [ppm].
CDCO2 = Concentration of CO2 in the dilutesample 
[ppm].

    (e) The humidity correction factor KH is an 
adjustmentmade to the measured NOX. This corrects for 
thesensitivity that a spark-ignition engine has to the humidity of 
itscombustion air. The following formula is used to 
determineKH for NOX calculations:
[GRAPHIC] [TIFF OMITTED] TR04OC96.039

Where:

H = Absolute humidity of the engine intake air [grams of water 
perkilogram of dry air].

    (f) The absolute humidity of the engine intake air H is 
calculatedusing the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.040

Where:

Pdew = Saturated vapor pressure at the dew pointtemperature 
[kPa].
Pb = Barometric pressure [kPa].

    (g) The fuel mass flow rate Fi can be either measuredor 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.041

Where:

Mf = Mass of fuel consumed by the engine during themode [g].
T = Duration of the sampling period [hr].

    (h) The mass of fuel consumed during the mode sampling 
period,MFUEL can be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.042

Where:

GS = Mass of carbon measured during the mode samplingperiod 
[g].

[[Page 358]]

R2 = The fuel carbon weight fraction, which isthe mass of 
carbon in fuel per mass of fuel [g/g].

    (i) The grams of carbon measured during the mode GScan be 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.043

Where:

HCmass = mass of hydrocarbon emissions for the modesampling 
period [g].
COmass = mass of carbon monoxide emissions for themode 
sampling period [g].
CO2mass = mass of carbon dioxide emissions for themode 
sampling period [g].
[alpha] = The atomic hydrogen to carbon ratio of the fuel.



Sec. 91.427  Catalyst thermal stress resistance evaluation.

    (a)(1) The purpose of the evaluation procedure specified in 
thissection is to determine the effect of thermal stress on 
catalystconversion efficiency. The thermal stress is imposed on the 
testcatalyst by exposing it to quiescent heated air in an oven. 
Theevaluation of the effect of such stress on catalyst performance 
isbased on the resultant degradation of the efficiency with which 
theconversions of specific pollutants are promoted. The application 
ofthis evaluation procedure involves the several steps that aredescribed 
in the following paragraphs.
    (2) The engine manufacturer need not submit catalyst 
conversionefficiency data for pollutants that the catalyst being tested 
was notdesigned to reduce/oxidize. The engine manufacturer must specify 
thepollutants that the catalyst will be converting and submit 
catalystconversion efficiency data on only those pollutants.
    (b) Determination of initial conversion efficiency.
    (1) A synthetic exhaust gas mixture having the compositionspecified 
in Sec. 91.329 is heated to a temperature of 4505 
[deg]C and passed through the new test catalyst or,optionally, a test 
catalyst that has been exposed to temperatures lessthan or equal to 500 
[deg]C for less than or equal to two hours,under flow conditions that 
are representative of anticipated in-useconditions.
    (2) The concentration of each pollutant of interest, that 
is,hydrocarbons, carbon monoxide, or oxides of nitrogen, in the 
effluentof the catalyst is determined by means of the instrumentation 
that isspecified for exhaust gas analysis in subpart D of this part.
    (3) The conversion efficiency for each pollutant is determined by:
    (i) Subtracting the effluent concentration from the 
initialconcentration,
    (ii) Dividing this result by the initial concentration,
    (iii) Multiplying this result by 100 percent.
    (c) Imposition of thermal stress.
    (1) The catalyst is placed in an oven that has been pre-heated 
to1000 [deg]C and the temperature of the air in the oven is maintainedat 
1000 10 [deg]C for six hours. Optionally, the 
catalystmay instead be placed in an oven having a 90% nitrogen/10% water 
vaporenvironment that has been pre-heated to at least 850 [deg]C and 
thetemperature of the nitrogen/water vapor environment in the oven 
ismaintained at 850 [deg]C 10 [deg]C for six 
hours.
    (2) The catalyst is removed from the oven and allowed to cool toroom 
temperature.
    (d) Determination of final conversion efficiency. The steps listenin 
paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation.
    (1) The final conversion efficiency determined in paragraph (c) 
ofthis section is subtracted from the initial conversion 
efficiencydetermined in paragraph (b) of this section.
    (2) This result is divided by the initial conversion efficiency.
    (3) This result is multiplied by 100 percent.
    (f) Determination of compliance with degradation limit. Thepercent 
degradation determined in paragraph (e) of

[[Page 359]]

this sectionmust not be greater than 20 percent.



             Sec. Appendix A to Subpart E of Part91--Tables

      Table 1--Parameters To Be Measured orCalculated and Recorded
------------------------------------------------------------------------
                  Parameter                              Units
------------------------------------------------------------------------
Airflow rate (dry), if applicable...........  g/h
Fuel flow rate..............................  g/h
Engine speed................................  rpm
Engine torque output........................  N [middot] m
Power output................................  kW
Air inlet temperature.......................  [deg]C
Air humidity................................  mg/kg
Coolant temperature (liquid cooled).........  [deg]C
Exhaust mixing chamber surface temperature,   [deg]C
 if applicable.
Exhaust sample line temperature, if           [deg]C
 applicable.
Total accumulated hours of engine operation.  h
Barometric pressure.........................  kPa
------------------------------------------------------------------------


 Table 2--Test Cycle and WeightingFactors for Marine Engines
------------------------------------------------------------------------
                                                     Engine
                                                    torque as
                                         Engine         a
                                        speed as   percentage     Mode
              Mode No.                apercentage   ofmaximum  weighting
                                       of engine    torque at    factor
                                      rated speed     rated
                                                      speed
------------------------------------------------------------------------
1...................................         100        100         0.06
2...................................          80         71.6       0.14
3...................................          60         46.5       0.15
4...................................          40         25         0.25
5...................................        idle          0         0.40
------------------------------------------------------------------------


[[Page 360]]



            Sec. Appendix B to Subpart E of Part 91--Figures

[GRAPHIC] [TIFF OMITTED] TR04OC96.044


[[Page 361]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.045


[[Page 362]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.046


[[Page 363]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.047


[[Page 364]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.048


[[Page 365]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.049


[[Page 366]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.050



         Subpart F_Manufacturer Production Line Testing Program



Sec. 91.501  Applicability.

    (a) The requirements of this subpart F are applicable to allmarine 
spark-ignition engines subject to the provisions of subpart Aof this 
part 91.
    (1) This subpart F applies to marine spark-ignition outboardengines 
beginning with model year 1999.
    (2) This subpart F applies to marine spark-ignition 
personalwatercraft engines beginning with model year 2000.
    (b) The Administrator may waive the provisions of this subpart fora 
manufacturer or a specific engine family, as

[[Page 367]]

specified inparagraphs (b) (1), (2) and (3) of this section.
    (1) The provisions of this subpart are waived for existingtechnology 
OB/PWC through model year 2003.
    (2) Upon request by a manufacturer, the Administrator may waivethe 
provisions of this subpart for existing technology OB/PWC for aspecific 
engine family through model year 2005 if the Administratordetermines 
that the engine family will be phased out of production forsale in the 
U.S. by the end of model year 2005. As a condition toreceiving such a 
waiver for either model year 2004, 2005 or both, themanufacturer must 
discontinue production of engines for sale in theU.S. according to a 
schedule determined by the Administrator upongranting this waiver. 
Failure to do so by the manufacturer will voidab initio the applicable 
certificate of conformity.
    (3) A manufacturer request under paragraph (b)(2) of this 
sectionmust be in writing and apply to a specific engine family. The 
requestmust identify the engine family designation, a written 
rationalesupporting the FEL choice, the type of information used as a 
basis forthe FEL (e.g., previous emission tests, development tests), 
thespecific source of the information including when the information 
wasgenerated, the requested schedule for phasing the engine family out 
ofproduction, and any other information the Administrator may require.

[61 FR 52102, Oct. 4, 1996, as amended at 62 FR 15808, Apr. 2,1997]



Sec. 91.502  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, injector size, engine calibration, andother parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected fromthe 
population of an engine family for emission testing.



Sec. 91.503  Production line testing by the manufacturer.

    (a) Manufacturers of marine SI engines shall test production 
lineengines from each engine family according to the provisions of 
thissubpart.
    (b) Production line engines must be tested using the testprocedure 
specified in subpart E of this part that was used incertification unless 
an alternate procedure is approved by theAdministrator. Any adjustable 
engine parameter must be set to valuesor positions that are within the 
range recommended to the ultimatepurchaser, unless otherwise specified 
by the Administrator. TheAdministrator may specify values within or 
without the rangerecommended to the ultimate purchaser.



Sec. 91.504  Maintenance of records; submittal of information.

    (a) The manufacturer of any new marine SI engine subject to any 
ofthe provisions of this subpart must establish, maintain, and retainthe 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used totest 
engines in accordance with Sec. 91.503. Subpart D ofthis part sets 
forth relevant equipment requirements inSec. Sec. 91.306, 91.308, 
91.309, and 91.313.
    (2) Individual records. These records pertain to eachproduction line 
test conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the test 
enginewhen the test began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the production line test;
    (iv) A record and description of any adjustment, repair,preparation 
or modification performed prior to and/or subsequent toapproval by the 
Administrator pursuant to Sec. 91.507(b)(1),giving the date, associated 
time, justification, name(s) of theauthorizing personnel, and names of 
all supervisory personnelresponsible for the conduct of the repair;
    (v) If applicable, the date the engine was shipped from theassembly 
plant,

[[Page 368]]

associated storage facility or port facility, andthe date the engine was 
received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant 
tothis subpart (except tests performed directly by EPA), including 
allindividual worksheets and/or other documentation relating to 
eachtest, or exact copies thereof, in accordance with the 
recordrequirements specified in Sec. 91.405.
    (vii) A brief description of any significant events during 
testingnot otherwise described under paragraph (a)(2) of this 
section,commencing with the test engine selection process and including 
suchextraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain 
generalrecords, pursuant to paragraph (a)(1) of this section, for each 
testcell that can be used to perform emission testing under this 
subpart.
    (b) The manufacturer must retain all records required to 
bemaintained under this subpart for a period of one year aftercompletion 
of all testing required for the engine family in a modelyear. Records 
may be retained as hard copy (i.e., on paper) or reducedto microfilm, 
floppy disk, or some other method of data storage,depending upon the 
manufacturer's record retention procedure;provided, that in every case, 
all the information contained in thehard copy is retained.
    (c) The manufacturer must, upon request by the Administrator,submit 
the following information with regard to engine production:
    (1) Projected production or actual production for each 
engineconfiguration within each engine family for which certification 
hasbeen requested and/or approved,
    (2) Number of engines, by configuration and assembly plant,scheduled 
for production or actually produced.
    (d) Nothing in this section limits the Administrator's discretionto 
require a manufacturer to establish, maintain, retain or submit toEPA 
information not specified by this section.
    (e) All reports, submissions, notifications, and requests 
forapproval made under this subpart must be addressed to: Manager, 
EngineCompliance Programs Group 6403J, U.S. Environmental Protection 
Agency,1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of 
itsproduction line testing using an EPA information format. 
TheAdministrator may exempt manufacturers from this requirement 
uponwritten request with supporting justification.



Sec. 91.505  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions of this or other subparts of thispart, one 
or more EPA enforcement officers may enter during operatinghours and 
upon presentation of credentials any of the followingplaces:
    (1) Any facility, including ports of entry, where any engine to 
beintroduced into commerce or any emission-related component 
ismanufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or 
anyother subpart or any procedure or activity connected with such test 
isor was performed;
    (3) Any facility where any test engine is present; and
    (4) Any facility where any record required underSec. 91.504 or 
other document relating to this subpart orany other subpart of this part 
is located.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers are authorized to perform 
thefollowing inspection-related activities:
    (1) To inspect and monitor any aspect of engine 
manufacture,assembly, storage, testing and other procedures, and to 
inspect andmonitor the facilities in which these procedures are 
conducted;
    (2) To inspect and monitor any aspect of engine test procedures 
oractivities, including test engine selection, preparation and 
serviceaccumulation, emission test cycles, and maintenance and 
verificationof test equipment calibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine 
andany

[[Page 369]]

component used in the assembly thereof that is reasonablyrelated to the 
purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain 
reasonableassistance without cost from those in charge of a facility to 
help theofficers perform any function listed in this subpart and they 
areauthorized to request the manufacturer to make arrangements with 
thosein charge of a facility operated for the manufacturer's benefit 
tofurnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
an EPA enforcement officer's request of personnel of thefacility being 
inspected during their working hours to inform the EPAenforcement 
officer of how the facility operates and to answer theofficer's 
questions; and the performance on request of emission testson any engine 
which is being, has been, or will be used for productionline or other 
testing.
    (2) By written request, signed by the Assistant Administrator forAir 
and Radiation, and served on the manufacturer, a manufacturer maybe 
compelled to cause the personal appearance of any employee at sucha 
facility before an EPA enforcement officer. Any such employee whohas 
been instructed by the manufacturer to appear will be entitled tobe 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant 
orcourt order authorizing the EPA enforcement officers to conduct 
theactivities authorized in this section, as appropriate, to execute 
thefunctions specified in this section. EPA enforcement officers 
mayproceed ex parte to obtain a warrant or court order whether ornot the 
EPA enforcement officers first attempted to seek permissionfrom the 
manufacturer or the party in charge of the facility(ies) inquestion to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) 
whopresents a warrant or court order to conduct the activities 
authorizedin this section as described in the warrant or court order. 
Themanufacturer must also cause those in charge of its facility or 
afacility operated for its benefit to permit entry and access 
asauthorized in this section pursuant to a warrant or court orderwhether 
or not the manufacturer controls the facility. In the absenceof a 
warrant or court order, an EPA enforcement officer(s) may conductthe 
activities authorized in this section only upon the consent of 
themanufacturer or the party in charge of the facility(ies) in question.
    (f) It is not a violation of this part or the Clean Air Act forany 
person to refuse to permit an EPA enforcement officer(s) toconduct the 
activities authorized in this section if the officer(s)appears without a 
warrant or court order.
    (g) A manufacturer is responsible for locating its foreign 
testingand manufacturing facilities in jurisdictions where local law 
does notprohibit an EPA enforcement officer(s) from conducting the entry 
andaccess activities specified in this section. EPA will not attempt 
tomake any inspections which it has been informed local foreign 
lawprohibits.



Sec. 91.506  Engine sample selection.

    (a) At the start of each model year, the marine SI 
enginemanufacturer will begin to randomly select engines from each 
enginefamily for production line testing at a rate of one percent. 
Eachengine will be selected from the end of the assembly line.
    (1) For newly certified engine families: After two enginesare 
tested, the manufacturer will calculate the required sample sizefor the 
model year according to the Sample Size Equation in paragraph(b) of this 
section.
    (2) For carry-over engine families: After one engine istested, the 
manufacturer will combine the test with the last testresult from the 
previous model year and then calculate the requiredsample size for the 
model year according to the Sample Size Equationin paragraph (b) of this 
section.
    (b)(1) Manufacturers will calculate the required sample size forthe 
model year for each engine family using the Sample Size Equationbelow. N 
is calculated from each test result. The number N indicatesthe number of 
tests

[[Page 370]]

required for the model year for an enginefamily. N, is recalculated 
after each test. Test results used tocalculate the variables in the 
Sample Size Equation must be finaldeteriorated test results as specified 
in Sec. 91.509(c).
[GRAPHIC] [TIFF OMITTED] TR04OC96.051

where:

N=required sample size for the model year.
t95=95% confidence coefficient. It is dependent on theactual 
number of tests completed, n, as specified in the table inparagraph 
(b)(2) of this section. It defines one-tail, 95 percentconfidence 
intervals.
[sigma]=actual test sample standard deviation calculated from 
thefollowing equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.052

xi=emission test result for an individual engine
x=mean of emission test results of the actual sample
FEL=Family Emission Limit
n=The actual number of tests completed in an engine family

    (2) Actual Number of Tests (n) & 1-tail ConfidenceCoefficients 
(t95)

------------------------------------------------------------------------
        n          t95           n          t95          n          t95
------------------------------------------------------------------------
2                  6.31  12                 1.80  22                1.72
3                  2.92  13                 1.78  23                1.72
4                  2.35  14                 1.77  24                1.71
5                  2.13  15                 1.76  25                1.71
6                  2.02  16                 1.75  26                1.71
7                  1.94  17                 1.75  27                1.71
8                  1.90  18                 1.74  28                1.70
9                  1.86  19                 1.73  29                1.70
10                 1.83  20                 1.73  30                1.70
11                 1.81  21                 1.72  [infin]          1.645
------------------------------------------------------------------------

    (3) A manufacturer must distribute the testing of the 
remainingnumber of engines needed to meet the required sample size N, 
evenlythroughout the remainder of the model year.
    (4) After each new test, the required sample size, N, isrecalculated 
using updated sample means, sample standard deviationsand the 
appropriate 95% confidence coefficient.
    (5) A manufacturer must continue testing and updating each 
enginefamily's sample size calculations according to paragraphs 
(b)(1)through (b)(4) of this section until a decision is made to 
stoptesting as described in paragraph (b)(6) of this section or 
anoncompliance decision is made pursuant to Sec. 91.510(b).
    (6) If, at any time throughout the model year, the 
calculatedrequired sample size, N, for an engine family is less than or 
equal tothe actual sample size, n, and the sample mean, x, 
forHC+NOX is less than or equal to the FEL, the 
manufacturermay stop testing that engine family.
    (7) If, at any time throughout the model year, the sample mean, 
x,for HC+NOX is greater than the FEL, the manufacturer 
mustcontinue testing that engine family at the appropriate 
maximumsampling rate.
    (8) The maximum required sample size for an engine family(regardless 
of the required sample size, N, as calculated in paragraph(b)(1) of this 
section) is the lesser of thirty tests per model yearor one percent of 
projected annual production for that engine familyfor that model year.
    (9) Manufacturers may elect to test additional randomly 
chosenengines. All additional randomly chosen engines tested in 
accordancewith the testing procedures specified in Sec. 91.507 must 
beincluded in the Sample Size and Cumulative Sum equation calculationsas 
defined in paragraph (b)(1) of this section andSec. 91.508(a), 
respectively.
    (c) The manufacturer must produce and assemble the test enginesusing 
its normal production and assembly process for engines to bedistributed 
into commerce.
    (d) No quality control, testing, or assembly procedures will beused 
on any test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
unlessthe Administrator approves the modification in production or 
assemblyprocedures.



Sec. 91.507  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of 
thissubpart, the prescribed test procedures are specified in subpart E 
ofthis part.
    (2) The Administrator may, on the basis of a written applicationby a

[[Page 371]]

manufacturer, prescribe test procedures other than thosespecified in 
paragraph (a)(1) of this section for any marine engine heor she 
determines is not susceptible to satisfactory testing usingprocedures 
specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or 
modifyany test engine and may not perform any emission test on any 
testengine unless this adjustment, repair, preparation, modificationand/
or test is documented in the manufacturer's engine assembly 
andinspection procedures and is actually performed by the manufacturer 
orunless this adjustment, repair, preparation, modification and/or 
testis required or permitted under this subpart or is approved in 
advanceby the Administrator.
    (2) The Administrator may adjust or require to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification, production line testing and 
SelectiveEnforcement Audit testing, to any setting within the 
physicallyadjustable range of that parameter, as determined by 
theAdministrator, prior to the performance of any test. However, if 
theidle speed parameter is one which the Administrator has determined 
tobe subject to adjustment, the Administrator may not adjust it 
orrequire that it be adjusted to any setting which causes a lower 
engineidle speed than would have been possible within the 
physicallyadjustable range of the idle speed parameter if the 
manufacturer hadaccumulated 12 hours of service on the engine under 
paragraph (c) ofthis section, all other parameters being identically 
adjusted for thepurpose of the comparison. The manufacturer may be 
requested to supplyinformation necessary to establish an alternate 
minimum idle speed.The Administrator, in making or specifying these 
adjustments, mayconsider the effect of the deviation from the 
manufacturer'srecommended setting on emission performance 
characteristics as well asthe likelihood that similar settings will 
occur on in-use engines. Indetermining likelihood, the Administrator may 
consider factors suchas, but not limited to, the effect of the 
adjustment on engineperformance characteristics and information from 
similar in-useengines.
    (c) Service accumulation. (1) Prior to performing exhaust 
emissionproduction line testing, the manufacturer may accumulate on each 
testengine a number of hours of service equal to the greater of 12 
hoursor the number of hours the manufacturer accumulated 
duringcertification on the emission data engine for each engine family.
    (2) Service accumulation must be performed in a manner using 
goodengineering judgment to obtain emission results representative 
ofproduction line engines.
    (d) The manufacturer may not perform any maintenance on testengines 
after selection for testing.
    (e) If an engine is shipped to a remote facility for productionline 
testing, and an adjustment or repair is necessary because ofshipment, 
the engine manufacturer must perform the necessaryadjustment or repair 
only after the initial test of the engine, exceptin cases where the 
Administrator has determined that the test would beimpossible or unsafe 
to perform or would permanently damage theengine. Engine manufacturers 
must report to the Administrator, in thequarterly report required by 
Sec. 91.509(e), all adjustmentsor repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or 
anemission test because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the testprocedure 
specified in subpart E of this part to demonstratecompliance with the 
applicable FEL. If alternate procedures were usedin certification, then 
those alternate procedures must be used inproduction line testing.
    (h) Retesting. (1) If an engine manufacturer reasonablydetermines 
that an emission test of an engine is invalid, the enginemay be 
retested. Emission results from all tests must be reported toEPA. The 
engine manufacturer must also include a detailed explanationof the 
reasons for invalidating any test in the quarterly reportrequired in

[[Page 372]]

Sec. 91.509(e). In the event a retest isperformed, a request may be 
made to the Administrator, within ten daysof the end of the production 
quarter, for permission to substitute theafter-repair test results for 
the original test results. TheAdministrator will either affirm or deny 
the request by the enginemanufacturer within ten working days from 
receipt of the request.



Sec. 91.508  Cumulative Sum (CumSum) procedure.

    (a) Manufacturers must construct the following CumSum Equation 
forHC+NOX for each engine family. Test results used 
tocalculate the variables in the CumSum Equation must be 
finaldeteriorated test results as defined in Sec. 91.509(c).

Ci = max[0 0R (Ci-1 +Xi - (FEL + F))]

Where:

Ci = The current CumSum statistic
Ci-1 = The previous CumSum statistic. Prior toany testing, 
the CumSum statistic = 0 (i.e. C0 = 0)
Xi = The current emission test result for anindividual engine
FEL = Family Emission Limit
F = 0.25 x [sigma]

    After each test, Ci is compared to the action limit,H, 
the quantity which the CumSum statistic must exceed, in twoconsecutive 
tests, before the engine family may be determined to be innoncompliance 
for purposes of Sec. 91.510.

H = The Action Limit. It is 5.0 x [sigma], and is afunction of the 
standard deviation, [sigma].
[sigma] = is the sample standard deviation and is recalculatedafter each 
test.

    (b) After each engine is tested, the CumSum statistic shall 
bepromptly updated according to the CumSum Equation in paragraph (a) 
ofthis section.
    (c)(1) If, at any time during the model year, a manufactureramends 
the application for certification for an engine family asspecified in 
paragraph (a) of Sec. 91.122 by performing anengine family modification 
(i.e. a change such as a running changeinvolving a physical modification 
to an engine, a change inspecification or setting, the addition of a new 
configuration, or theuse of a different deterioration factor) with no 
changes to the FEL,all previous sample size and CumSum statistic 
calculations for themodel year will remain unchanged.
    (2) If, at any time during the model year, a manufacturer amendsthe 
application for certification for an engine family as specified 
inparagraph (a) of Sec. 91.122 by modifying its FEL as aresult of an 
engine family modification, the manufacturer mustcontinue its 
calculations by inserting the new FEL into the samplesize equation as 
specified in Sec. 91.506(b)(1) and into theCumSum equation in paragraph 
(a) of this section. All previouscalculations remain unchanged. If the 
sample size calculationindicates that additional tests are required, 
then those tests must beperformed. The CumSum statistic recalculation 
must not indicate thatthe family has exceeded the action limit for two 
consecutive tests.The manufacturer's final credit report as required 
bySec. 91.210 must break out the credits that result from eachFEL and 
corresponding CumSum analysis for each FEL set.
    (3) If, at any time during the model year, a manufacturer amendsthe 
application for certification for an engine family as specified 
inparagraph (a) of Sec. 91.122 by modifying its FEL withoutperforming 
an engine modification, all previous sample size and CumSumstatistic 
calculations for the model year must be recalculated usingthe new FEL. 
If the sample size calculation indicates that additionaltests are 
required, then those tests must be performed. The CumSumstatistic 
recalculation must not indicate that the family has exceededthe action 
limit for two consecutive tests.
    (4) If, at any time after the end of the model year but prior tothe 
manufacturer's final credit report submittal as specified inSec. 
91.210, a manufacturer changes an FEL for an entirefamily, or for an 
affected part of the year's production, as specifiedin paragraph (a) of 
Sec. 91.122, in cases where there wereone or more mid-year engine 
family modifications, all previous samplesize and CumSum statistic 
calculations for the model year, or part ofthe model year affected by an 
engine family change, must berecalculated using the new FEL. The sample 
size equation must notindicate a larger number of

[[Page 373]]

tests than were appropriatelyperformed using the previous FEL and the 
CumSum statisticrecalculation must not exceed the action limit in two 
consecutivetests. The manufacturer's final credit report as required 
bySec. 91.210 must break out the credits that result from eachFEL and 
corresponding CumSum analysis for each FEL set.



Sec. 91.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicabletest 
procedure specified in paragraph (a) of Sec. 91.507.The manufacturer 
rounds these results, in accordance with ASTME29-93a, to the number of 
decimal places contained in theapplicable emission standard expressed to 
one additional significantfigure. (ASTM E29-93a has been incorporated by 
reference. SeeSec. 91.6.)
    (b) Final test results are calculated by summing the initial 
testresults derived in paragraph (a) of this section for each test 
engine,dividing by the number of tests conducted on the engine, and 
roundingin accordance with ASTM E29-93a to the same number of 
decimalplaces contained in the applicable standard expressed to 
oneadditional significant figure.
    (c) The final deteriorated test results for each test engine 
arecalculated by applying the appropriate deterioration factors, 
derivedin the certification process for the engine family, to the final 
testresults, and rounding in accordance with ASTM E29-93a to thesame 
number of decimal places contained in the applicable standardexpressed 
to one additional significant figure.
    (d) If, at any time during the model year, the CumSum 
statisticexceeds the applicable action limit, H, in two consecutive 
tests, theengine family may be determined to be in noncompliance and 
themanufacturer must notify EPA within two working days of 
suchexceedance by the CumSum statistic.
    (e) Within 30 calendar days of the end of each quarter, eachengine 
manufacturer must submit to the Administrator a report whichincludes the 
following information:
    (1) The location and description of the manufacturer's or 
other'sexhaust emission test facilities which were utilized to 
conducttesting reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each 
enginefamily;
    (3) The FEL against which each engine family was tested;
    (4) A description of the process to obtain engines on a randombasis;
    (5) A description of the test engines;
    (6) For each test conducted,
    (i) A description of the test engine, including:
    (A) Configuration and engine family identification,
    (B) Year, make, and build date,
    (C) Engine identification number, and
    (D) Number of hours of service accumulated on engine prior 
totesting;
    (ii) Location where service accumulation was conducted 
anddescription of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding, and final test results for all 
exhaustemission tests, whether valid or invalid, and the reason 
forinvalidation, if applicable;
    (iv) A complete description of any adjustment, modification,repair, 
preparation, maintenance, and/or testing which was performedon the test 
engine, was not reported pursuant to any other paragraphof this subpart, 
and will not be performed on all other productionengines;
    (v) A CumSum analysis, as required in Sec. 91.508, ofthe production 
line test results for each engine family;
    (vi) Any other information the Administrator may request relevantto 
the determination whether the new engines being manufactured by 
themanufacturer do in fact conform with the regulations with respect 
towhich the certificate of conformity was issued;
    (7) For each failed engine as defined in Sec. 91.510(a),a 
description of the remedy and test results for all retests asrequired by 
Sec. 91.511(g);
    (8) The date of the end of the engine manufacturer's model 
yearproduction for each engine family; and
    (9) The following signed statement and endorsement by anauthorized 
representative of the manufacturer:


[[Page 374]]


    This report is submitted pursuant to sections 213 and 208 ofthe 
Clean Air Act. This production line testing program was conductedin 
complete conformance with all applicable regulations under 40 CFRpart 91 
et seq. No emission-related changes to productionprocesses or quality 
control procedures for the engine family testedhave been made during 
this production line testing program that affectengines from the 
production line. All data and information reportedherein is, to the best 
of (Company Name) knowledge, true and accurate.I am aware of the 
penalties associated with violations of the CleanAir Act and the 
regulations thereunder. (Authorized CompanyRepresentative.)



Sec. 91.510  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test 
resultspursuant to Sec. 91.509(c), for HC + NOX exceedsthe 
applicable Family Emission Limit (FEL).
    (b) An engine family may be determined to be in noncompliance, ifat 
any time throughout the model year, the CumSum statistic,Ci, 
for HC+NOX. is greater than the actionlimit, H, for two 
consecutive tests.



Sec. 91.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is automatically suspended 
withrespect to any engine failing pursuant to paragraph (a) ofSec. 
91.510 effective from the time that testing of thatengine is completed.
    (b) The Administrator may suspend the certificate of conformityfor 
an engine family which is determined to be in noncompliancepursuant to 
Sec. 90.510(b). This suspension will not occurbefore fifteen days after 
the engine family is determined to be innoncompliance.
    (c) If the results of testing pursuant to these regulationsindicate 
that engines of a particular family produced at one plant ofa 
manufacturer do not conform to the regulations with respect to whichthe 
certificate of conformity was issued, the Administrator maysuspend the 
certificate of conformity with respect to that family forengines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in 
theapplication for certification may be covered by a certificate 
ofconformity, the Administrator may suspend such certificate 
immediatelyin whole or in part if the Administrator finds any one of 
thefollowing infractions to be substantial:
    (1) The manufacturer refuses to comply with any of therequirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information inany 
report or information provided to the Administrator under thissubpart.
    (3) The manufacturer renders inaccurate any test data submittedunder 
this subpart.
    (4) An EPA enforcement officer is denied the opportunity toconduct 
activities authorized in this subpart and a warrant or courtorder is 
presented to the manufacturer or the party in charge of thefacility in 
question.
    (5) An EPA enforcement officer is unable to conduct 
activitiesauthorized in Sec. 91.505 because a manufacturer has 
locatedits facility in a foreign jurisdiction where local law prohibits 
thoseactivities.
    (e) The Administrator shall notify the manufacturer in writing ofany 
suspension or revocation of a certificate of conformity in wholeor in 
part. A suspension or revocation is effective upon receipt ofthe 
notification or fifteen days from the time an engine family isdetermined 
to be in noncompliance pursuant toSec. 91.510(b), whichever is later, 
except that thecertificate is immediately suspended with respect to any 
failedengines as provided for in paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity foran 
engine family after the certificate has been suspended pursuant 
toparagraph (b) or (c) of this section if the proposed remedy for 
thenonconformity, as reported by the manufacturer to the 
Administrator,is one requiring a design change or changes to the engine 
and/oremission control system as described in the application 
forcertification of the affected engine family.
    (g) Once a certificate has been suspended for a failed engine, 
asprovided for in paragraph (a) of this section, the manufacturer 
musttake the following actions before the certificate is reinstated 
forthat failed engine:
    (1) Remedy the nonconformity;

[[Page 375]]

    (2) Demonstrate that the engine conforms to the FamilyEmission Limit 
by retesting the engine in accordance with theseregulations; and
    (3) Submit a written report to the Administrator, after 
successfulcompletion of testing on the failed engine, which contains 
adescription of the remedy and test results for each engine in 
additionto other information that may be required by this part.
    (h) Once a certificate for a failed engine family has beensuspended 
pursuant to paragraph (b), (c) or (d) of this section, themanufacturer 
must take the following actions before the Administratorwill consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the engines, describes theproposed 
remedy, including a description of any proposed qualitycontrol and/or 
quality assurance measures to be taken by themanufacturer to prevent 
future occurrences of the problem, and statesthe date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theregulations of 
this part by testing as many engines as needed so thatthe CumSum 
statistic, as calculated in Sec. 91.508(a), fallsbelow the action 
limit. Such testing must comply with the provisionsof this part. If the 
manufacturer elects to continue testingindividual engines after 
suspension of a certificate, the certificateis reinstated for any engine 
actually determined to be in conformancewith the Family Emission Limits 
through testing in accordance with theapplicable test procedures, 
provided that the Administrator has notrevoked the certificate pursuant 
to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, 
ifthe manufacturer desires to continue introduction into commerce of 
amodified version of that family, the following actions must be 
takenbefore the Administrator may issue a certificate for that 
modifiedfamily:
    (1) If the Administrator determines that the proposed change(s) 
inengine design may have an effect on emission performancedeterioration, 
the Administrator shall notify the manufacturer, withinfive working days 
after receipt of the report in paragraph (h)(1) ofthis section, whether 
subsequent testing under this subpart will besufficient to evaluate the 
proposed change or changes or whetheradditional testing will be 
required; and
    (2) After implementing the change or changes intended to remedythe 
nonconformity, the manufacturer must demonstrate that the modifiedengine 
family does in fact conform with the regulations of this partby testing 
as many engines as needed from the modified engine familyso that the 
CumSum statistic, as calculated inSec. 91.508(a) using the newly 
assigned FEL if applicable,falls below the action limit. When both of 
these requirements are met,the Administrator shall reissue the 
certificate or issue a newcertificate, as the case may be, to include 
that family. As long asthe CumSum statistic remains above the action 
limit, the revocationremains in effect.
    (j) At any time subsequent to a suspension of a certificate 
ofconformity for a test engine pursuant to paragraph (a) of thissection, 
but not later than 15 days (or such other period as may beallowed by the 
Administrator) after notification of theAdministrator's decision to 
suspend or revoke a certificate ofconformity in whole or in part 
pursuant to paragraphs (b), (c), or (f)of this section, a manufacturer 
may request a hearing as to whetherthe tests have been properly 
conducted or any sampling methods havebeen properly applied.
    (k) Any suspension of a certificate of conformity under paragraph(d) 
of this section:
    (1) Shall be made only after the manufacturer concerned has 
beenoffered an opportunity for a hearing conducted in accordance 
withSec. Sec. 91.512, 91.513, and 91.514 and
    (2) Need not apply to engines no longer in the possession of 
themanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section and prior to the commencement of 
ahearing under

[[Page 376]]

Sec. 91.512, if the manufacturerdemonstrates to the Administrator's 
satisfaction that the decision tosuspend or revoke the certificate was 
based on erroneous information,the Administrator shall reinstate the 
certificate.
    (m) To permit a manufacturer to avoid storing non-test engineswhile 
conducting subsequent testing of the noncomplying family, amanufacturer 
may request that the Administrator conditionallyreinstate the 
certificate for that family. The Administrator mayreinstate the 
certificate subject to the following condition: themanufacturer must 
commit to recall all engines of that family producedfrom the time the 
certificate is conditionally reinstated if theCumSum statistic does not 
fall below the action limit and must committo remedy any nonconformity 
at no expense to the owner.



Sec. 91.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator'sdecision 
to suspend or revoke a certificate or disputes the basis foran automatic 
suspension pursuant to Sec. 91.511(a), themanufacturer may request a 
public hearing.
    (b) The manufacturer's request shall be filed with theAdministrator 
not later than 15 days after the Administrator'snotification of his or 
her decision to suspend or revoke, unlessotherwise specified by the 
Administrator. The manufacturer shallsimultaneously serve two copies of 
this request upon the Manager ofthe Engine Compliance Programs Group and 
file two copies with theHearing Clerk for the Agency. Failure of the 
manufacturer to request ahearing within the time provided constitutes a 
waiver of the right toa hearing. Subsequent to the expiration of the 
period for requesting ahearing as of right, the Administrator may, in 
his or her discretionand for good cause shown, grant the manufacturer a 
hearing to contestthe suspension or revocation.
    (c) A manufacturer shall include in the request for a publichearing:
    (1) A statement as to which engine configuration(s) within afamily 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by 
themanufacturer at the hearing, except that in the case of the 
hearingrequested under Sec. 91.511(j), the hearing is restricted tothe 
following issues:
    (i) Whether tests have been properly conducted (specifically,whether 
the tests were conducted in accordance with applicableregulations under 
this part and whether test equipment was properlycalibrated and 
functioning);
    (ii) Whether sampling plans and statistical analyses have 
beenproperly applied (specifically, whether sampling procedures 
andstatistical analyses specified in this subpart were followed 
andwhether there exists a basis for distinguishing engines produced 
atplants other than the one from which engines were selected for 
testingwhich would invalidate the Administrator's decision underSec. 
91.511(c));
    (3) A statement specifying reasons why the manufacturer believesit 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the 
manufacturer'sposition on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.



Sec. 91.513  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law 
Judgeappointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 
asamended).
    (b) The Judicial Officer shall be an officer or employee of 
theAgency appointed as a Judicial Officer by the Administrator, 
pursuantto this section, who shall meet the qualifications and 
performfunctions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent 
ortemporary employee of the Agency who performs other duties for 
theAgency. The Judicial Officer shall not be employed by the Office 
ofEnforcement and Compliance Assurance or have any connection with 
thepreparation or presentation of evidence for a hearing held pursuant 
tothis subpart. The Judicial Officer shall be a graduate of anaccredited 
law school and a member in good standing

[[Page 377]]

of arecognized Bar Association of any state or the District of Columbia.
    (2) Functions. The Administrator may consult with theJudicial 
Officer or delegate all or part of the Administrator'sauthority to act 
in a given case under this section to a JudicialOfficer, provided that 
this delegation does not preclude the JudicialOfficer from referring any 
motion or case to the Administrator whenthe Judicial Officer determines 
such referral to be appropriate.
    (c) For the purposes of this section, one or more JudicialOfficers 
may be designated by the Administrator. As work requires, aJudicial 
Officer may be designated to act for the purposes of aparticular case.
    (d) Summary decision. (1) In the case of a hearing requested 
underSec. 91.511(j), when it clearly appears from the data andother 
information contained in the request for a hearing that nogenuine and 
substantial question of fact or law exists with respect tothe issues 
specified in Sec. 91.512(c)(2), the Administratormay enter an order 
denying the request for a hearing and reaffirmingthe original decision 
to suspend or revoke a certificate ofconformity.
    (2) In the case of a hearing requested under Sec. 91.512to 
challenge a suspension of a certificate of conformity for thereason(s) 
specified in Sec. 91.511(d), when it clearlyappears from the data and 
other information contained in the requestfor the hearing that no 
genuine and substantial question of fact orlaw exists with respect to 
the issue of whether the refusal to complywith this subpart was caused 
by conditions and circumstances outsidethe control of the manufacturer, 
the Administrator may enter an orderdenying the request for a hearing 
and suspending the certificate ofconformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of thissection 
has the force and effect of a final decision of theAdministrator, as 
issued pursuant to Sec. 91.515.
    (4) If the Administrator determines that a genuine and 
substantialquestion of fact or law does exist with respect to any of the 
issuesreferred to in paragraphs (d)(1) and (d)(2) of this section, 
theAdministrator shall grant the request for a hearing and publish 
anotice of public hearing in the Federal Register or by suchother means 
as the Administrator finds appropriate to provide noticeto the public.
    (e) Filing and service. (1) An original and two copies of 
alldocuments or papers required or permitted to be filed pursuant to 
thissection and Sec. 91.512(c) must be filed with the HearingClerk of 
the Agency. Filing is considered timely if mailed, asdetermined by the 
postmark, to the Hearing Clerk within the timeallowed by this section 
and Sec. 91.512(b). If filing is tobe accomplished by mailing, the 
documents must be sent to the addressset forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented 
inwritten form. Copies of written testimony will be served upon 
allparties as soon as practicable prior to the start of the hearing. 
Acertificate of service will be provided on or accompany each documentor 
paper filed with the Hearing Clerk. Documents to be served upon 
theManager of the Engine Compliance Programs Group must be sent 
byregistered mail to: Manager, Engine Compliance Programs Group6403-J, 
U.S. Environmental Protection Agency, 1200 PennsylvaniaAve., NW., 
Washington, DC 20460. Service by registered mail iscomplete upon 
mailing.
    (f) Computation of time. (1) In computing any period of 
timeprescribed or allowed by this section, except as otherwise 
provided,the day of the act or event from which the designated period of 
timebegins to run is not included. Saturdays, Sundays, and federal 
legalholidays are included in computing the period allowed for the 
filingof any document or paper, except that when the period expires on 
aSaturday, Sunday, or federal legal holiday, the period is extended 
toinclude the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted to do an act is computed from the time of service, exceptthat 
when service is accomplished by mail, three days will be added tothe 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer inhis 
or her discretion may consolidate two or more proceedings to beheld 
under this

[[Page 378]]

section for the purpose of resolving one or moreissues whenever it 
appears that consolidation will expedite orsimplify consideration of 
these issues. Consolidation does not affectthe right of any party to 
raise issues that could have been raised ifconsolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings underSec. 91.512 
will be scheduled to commence within 14 days ofreceipt of the request 
for a hearing.



Sec. 91.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84(i) to(s) apply for 
hearings requested pursuant to Sec. 91.512regarding suspension, 
revocation, or voiding of a certificate ofconformity.



Sec. 91.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84(t) to(aa) apply for 
appeals filed with respect to hearings held pursuant toSec. 91.514.



Sec. 91.516  Treatment of confidential information.

    Except for information required by Sec. 91.509(e)(2) andSec. 
91.509 (e)(6)(vi), information submitted to EPApursuant to Sec. 
91.509(e) shall be made available to thepublic upon request by EPA 
notwithstanding any claim ofconfidentiality made by the submitter. The 
provisions for treatment ofconfidential information described in Sec. 
91.7 apply to theinformation required by Sec. 91.509(e)(2) and all 
otherinformation submitted pursuant to this subpart.



          Subpart G_Selective Enforcement Auditing Regulations



Sec. 91.601  Applicability.

    The requirements of subpart G are applicable to all marine SIengines 
subject to the provisions of subpart A of part 91.



Sec. 91.602  Definitions.

    The definitions in subpart A and subpart F of this part apply tothis 
subpart. The following definitions also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentageof 
failing engines that can be considered a satisfactory processaverage for 
sampling inspections.
    Inspection criteria means the pass and fail numbersassociated with a 
particular sampling plan.



Sec. 91.603  Applicability of part 91, subpart F.

    (a) For purposes of selective enforcement audits conducted underthis 
subpart, marine SI engines subject to provisions of subpart B ofthis 
part are subject to regulations specified in subpart F of thispart, 
except:
    (1) Section 91.501 does not apply.
    (2) Section 91.503 does not apply. See Sec. 91.605.
    (3) Section 91.506 does not apply. See Sec. 91.606.
    (4) Section 91.507 does not apply. See Sec. 91.607.
    (5) Section 91.508 does not apply.
    (6) Paragraphs (d) and (e)(6)(v) and references to ``samplesizes, N 
and n'' of Sec. 91.509 do not apply.
    (7) The introductory text in Sec. 91.509 does not apply.The 
following text applies:
    ``Within 5 working days after completion of testing of allengines 
pursuant to a test order.''
    (8) The introductory text of Sec. 91.509(e)(9) does notapply. The 
following text applies:
    The following signed statement and endorsement by an 
authorizedrepresentative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of 
theClean Air Act. This Selective Enforcement Audit was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
Part91 et seq and the conditions of the test order. No emission-related 
changes to production processes or quality control proceduresfor the 
engine family tested have been made between receipt of thetest order and 
conclusion of the audit. All data and informationreported herein is, to 
the best of (Company Name) knowledge, true andaccurate. I am aware of 
the penalties associated with violations ofthe Clean Air Act and the 
regulations thereunder. (Authorized CompanyRepresentative.)

    (9) Section 91.510 does not apply. See Sec. 91.608.

[[Page 379]]



Sec. 91.604  Test orders.

    (a) A test order addressed to the manufacturer is required for 
anytesting under this subpart.
    (b) The test order is signed by the Assistant Administrator forAir 
and Radiation or his or her designee. The test order must bedelivered in 
person by an EPA enforcement officer or EPA authorizedrepresentative to 
a company representative or sent by registered mail,return receipt 
requested, to the manufacturer's representative whosigned the 
application for certification submitted by themanufacturer, pursuant to 
the requirements of the applicable sectionof subpart B of this part. 
Upon receipt of a test order, themanufacturer must comply with all of 
the provisions of this subpartand instructions in the test order.
    (c) Information included in test order. (1) The test orderwill 
specify the engine family to be selected for testing, themanufacturer's 
engine assembly plant or associated storage facility orport facility 
(for imported engines) from which the engines must beselected, the time 
and location at which engines must be selected, andthe procedure by 
which engines of the specified family must beselected. The test order 
may specify the configuration to be auditedand/or the number of engines 
to be selected per day. Enginemanufacturers are required to select a 
minimum of four engines per dayunless an alternate selection procedure 
is approved pursuant toSec. 91.606(a), or unless total production of 
the specifiedconfiguration is less than four engines per day. If total 
productionof the specified configuration is less than four engines per 
day, themanufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selectedfor 
testing at the Administrator's discretion in the event thatengines of 
the specified family are not available for testing becausethose engines 
are not being manufactured during the specified time orare not being 
stored at the specified assembly plant, associatedstorage facilities, or 
port of entry.
    (3) If the specified family is not being manufactured at a rate ofat 
least two engines per day in the case of manufacturers specified in40 
CFR 89.607(g)(1), or one engine per day in the case ofmanufacturers 
specified in 40 CFR 89.607(g)(2), over the expectedduration of the 
audit, the Assistant Administrator or her or hisdesignated 
representative may select engines of the alternate familyfor testing.
    (4) In addition, the test order may include other directions 
orinformation essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and 
thecorresponding assembly plants, associated storage facilities, or 
(inthe case of imported engines) port facilities from which 
themanufacturer prefers to have engines selected for testing in 
responseto a test order. In order that a manufacturer's preferred 
location beconsidered for inclusion in a test order for a particular 
enginefamily, the list must be submitted prior to issuance of the 
testorder. Notwithstanding the fact that a manufacturer has submitted 
thelist, the Administrator may order selection at other than a 
preferredlocation.
    (e) Upon receipt of a test order, a manufacturer must proceed 
inaccordance with the provisions of this subpart.



Sec. 91.605  Testing by the Administrator.

    (a) The Administrator may require by test order underSec. 91.604 
that engines of a specified family be selectedin a manner consistent 
with the requirements of Sec. 91.606and submitted to the Administrator 
at the place designated for thepurpose of conducting emission tests. 
These tests will be conducted inaccordance with Sec. 91.607 to 
determine whether enginesmanufactured by the manufacturer conform with 
the regulations withrespect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever theAdministrator 
conducts a test on a test engine or the Administratorand manufacturer 
each conduct a test on the same test engine, theresults of the 
Administrator's test comprise the official data forthat engine.
    (2) Whenever the manufacturer conducts all tests on a test 
engine,the manufacturer's test data is accepted as the official 
data,provided that if the

[[Page 380]]

Administrator makes a determination based ontesting conducted under 
paragraph (a) of this section that there is asubstantial lack of 
agreement between the manufacturer's test resultsand the Administrator's 
test results, no manufacturer's test data fromthe manufacturer's test 
facility will be accepted for purposes of thissubpart.
    (c) If testing conducted under Sec. 91.604 isunacceptable under 
paragraph (b)(2) of this section, the Administratormust:
    (1) Notify the manufacturer in writing of the 
Administrator'sdetermination that the test facility is inappropriate for 
conductingthe tests required by this subpart and the reasons therefor; 
and
    (2) Reinstate any manufacturer's data upon a showing by 
themanufacturer that the data acquired under Sec. 91.604 waserroneous 
and the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the 
Administratorreconsider the determination in paragraph (b)(2) of this 
section basedon data or information which indicates that changes have 
been made tothe test facility and these changes have resolved the 
reasons fordisqualification.



Sec. 91.606  Sample selection.

    (a) Engines comprising a test sample will be selected at thelocation 
and in the manner specified in the test order. If amanufacturer 
determines that the test engines cannot be selected inthe manner 
specified in the test order, an alternative selectionprocedure may be 
employed, provided the manufacturer requests approvalof the alternative 
procedure prior to the start of test sampleselection, and the 
Administrator approves the procedure.
    (b) The manufacturer must produce and assemble the test engines 
ofthe family selected for testing using its normal production 
andassembly process for engines to be distributed into commerce. 
If,between the time the manufacturer is notified of a test order and 
thetime the manufacturer finishes selecting test engines, 
themanufacturer implements any change(s) in its production or 
assemblyprocesses, including quality control, which may reasonably be 
expectedto affect the emissions of the engines selected, then the 
manufacturermust, during the audit, inform the Administrator of such 
changes. Ifthe test engines are selected at a location where they do not 
havetheir operational and emission control systems installed, the 
testorder will specify the manner and location for selection of 
componentsto complete assembly of the engines. The manufacturer must 
assemblethese components onto the test engines using normal assembly 
andquality control procedures as documented by the manufacturer.
    (c) No quality control, testing, or assembly procedures will beused 
on the test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
unlessthe Administrator approves the modification in production or 
assemblyprocedures pursuant to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s)or 
authorized representative(s), rather than the manufacturer, selectthe 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines theorder 
in which test results are to be used in applying the samplingplan in 
accordance with Sec. 91.608.
    (f) The manufacturer must keep on hand all untested engines, ifany, 
comprising the test sample until a pass or fail decision isreached in 
accordance with Sec. 91.608(e). The manufacturermay ship any tested 
engine which has not failed the requirements asset forth in Sec. 
91.608(b). However, once the manufacturerships any test engine, it 
relinquishes the prerogative to conductretests as provided in Sec. 
91.607(i).



Sec. 91.607  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of 
thissubpart, the prescribed test procedures are the test procedures 
asspecified in subpart E of this part.
    (2) The Administrator may, on the basis of a written applicationby a 
manufacturer, prescribe test procedures other than thosespecified in

[[Page 381]]

paragraph (a)(1) of this section for any marineengine he or she 
determines is not susceptible to satisfactory testingusing the 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or 
modifythe engines selected for testing and may not perform any 
emissiontests on engines selected for testing pursuant to the test 
orderunless this adjustment, repair, preparation, modification, and/
ortests are documented in the manufacturer's engine assembly 
andinspection procedures and are actually performed or unless 
theseadjustments and/or tests are required or permitted under this 
subpartor are approved in advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification and Selective Enforcement Audittesting in 
accordance with Sec. 91.112, to any settingwithin the physically 
adjustable range of that parameter, asdetermined by the Administrator in 
accordance withSec. 91.112, prior to the performance of any tests. 
However,if the idle speed parameter is one which the Administrator 
hasdetermined to be subject to adjustment, the Administrator may 
notadjust it to any setting which causes a lower engine idle speed 
thanwould have been possible within the physically adjustable range of 
theidle speed parameter if the manufacturer had accumulated 12 hours 
ofservice on the engine under paragraph (c) of this section, all 
otherparameters being identically adjusted for the purpose of 
thecomparison. The manufacturer may be requested to supply 
informationneeded to establish an alternate minimum idle speed. 
TheAdministrator, in making or specifying these adjustments, may 
considerthe effect of the deviation from the manufacturer's 
recommendedsetting on emission performance characteristics as well as 
thelikelihood that similar settings will occur on in-use engines. 
Indetermining likelihood, the Administrator may consider factors suchas, 
but not limited to, the effect of the adjustment on engineperformance 
characteristics and information from similar in-useengines.
    (c) Service accumulation. Prior to performing exhaustemission 
testing on an SEA test engine, the manufacturer mayaccumulate on each 
engine a number of hours of service equal to thegreater of 12 hours or 
the number of hours the manufactureraccumulated during certification on 
the emission data enginecorresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using 
goodengineering judgment to obtain emission results representative 
ofnormal production engines. This service accumulation must beconsistent 
with the new engine break-in instructions contained in theapplicable 
owner's manual.
    (2) The manufacturer must accumulate service at a minimum rate of6 
hours per engine during each 24-hour period, unless otherwiseapproved by 
the Administrator.
    (i) The first 24-hour period for service begins as soon asauthorized 
checks, inspections, and preparations are completed on eachengine.
    (ii) The minimum service accumulation rate does not apply onweekends 
or holidays.
    (iii) If the manufacturer's service or target is less than 
theminimum rate specified (6 hours per day), then the minimum 
dailyaccumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient numberof 
test engines during consecutive 24-hour periods to assure that thenumber 
of engines tested per day fulfills the requirements ofparagraphs (g)(1) 
and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on testengines 
after selection for testing, nor may the Administrator allowdeletion of 
any engine from the test sequence, unless requested by themanufacturer 
and approved by the Administrator before any enginemaintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from 
thepoint of selection to the test facility. If the test facility is 
notlocated at or in close proximity to the point of selection, 
themanufacturer must assure that test engines arrive at the test 
facilitywithin 24 hours of selection. The

[[Page 382]]

Administrator may approve moretime for shipment based upon a request by 
the manufacturer accompaniedby a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or 
anemission test because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a testorder 
issued under this subpart, the manufacturer must notify theAdministrator 
within one working day of receipt of the test order asto which test 
facility will be used to comply with the test order. Ifno test cells are 
available at a desired facility, the manufacturermust provide alternate 
testing capability satisfactory to theAdministrator.
    (1) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year of 7,500 or greater mustcomplete 
emission testing at a minimum rate of two engines per 24-hourperiod, 
including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for theUnited 
States market for the applicable year of less than 7,500 mustcomplete 
emission testing at a minimum rate of one engine per 24-hourperiod, 
including each voided test and each smoke test.
    (3) The Administrator may approve a lower daily rate of 
emissiontesting based upon a request by a manufacturer accompanied by 
asatisfactory justification.
    (h) The manufacturer must perform test engine selection, 
shipping,preparation, service accumulation, and testing in such a manner 
as toassure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines 
testedduring a Selective Enforcement Audit once a fail decision for 
theaudit has been reached in accordance with Sec. 91.608(e).
    (2) The Administrator may approve retesting at other times basedupon 
a request by the manufacturer accompanied by a 
satisfactoryjustification.
    (3) The manufacturer may retest each engine a total of threetimes. 
The manufacturer must test each engine or vehicle the samenumber of 
times. The manufacturer may accumulate additional servicebefore 
conducting a retest, subject to the provisions of paragraph (c)of this 
section.
    (j) A manufacturer must test engines with the test 
procedurespecified in subpart E of this part to demonstrate compliance 
with theexhaust emission standard (or applicable FEL) for 
HC+NOX.If alternate procedures were used in certification 
pursuant toSec. 91.119, then those alternate procedures must be used.



Sec. 91.608  Compliance with acceptable quality level and passing and failingcriteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant toSec. 
91.509(b), for HC+NOX. exceed theapplicable family emission 
level.
    (c) The manufacturer must test engines comprising the test 
sampleuntil a pass decision is reached for HC+NOX or a 
faildecision is reached for HC+NOX. A pass decision is 
reachedwhen the cumulative number of failed engines, as defined in 
paragraph(b) of this section, for HC+NOX is less than or 
equal tothe pass decision number, as defined in paragraph (d) of this 
section,appropriate to the cumulative number of engines tested. A 
faildecision is reached when the cumulative number of failed engines 
forHC+NOX is greater than or equal to the fail 
decisionnumber, as defined in paragraph (d) of this section, appropriate 
tothe cumulative number of engines tested.
    (d) The pass and fail decision numbers associated with thecumulative 
number of engines tested are determined by using the tablesin Appendix A 
to this subpart, ``Sampling Plans for SelectiveEnforcement Auditing of 
Marine Engines,'' appropriate to theprojected sales as made by the 
manufacturer in its report to EPA underSec. 91.504(c)(1). In the tables 
in Appendix A to thissubpart, sampling plan ``stage'' refers to the 
cumulativenumber of engines tested. Once a pass or fail decision has 
been madefor HC+NOX. the number of engines with

[[Page 383]]

final testresults exceeding the emission standard for HC+NOX 
shallnot be considered any further for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is madeon 
the last engine required to make a decision under paragraph (c) ofthis 
section.
    (f) The Administrator may terminate testing earlier than requiredin 
paragraph (c) of this section.



  Sec. Appendix A to Subpart G of Part91--Sampling Plans for Selective 

                  Enforcement Auditing of MarineEngines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
         Annual engine family sales                   Code letter
------------------------------------------------------------------------
20-50.......................................  AA \1\
20-99.......................................  A \1\
100-299.....................................  B
300-499.....................................  C
500 or greater..............................  D
------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the samplingplan for code
  letter ``AA'' or sampling plan for codeletter ``A'' for Selective
  Enforcement Audits of enginefamilies with annual sales between 20 and
  50 engines. Additional, themanufacturers may switch between these
  plans during the audit.


              Table 2--Sampling Plan for Code Letter``AA''
                      [Sample inspection criteria]
------------------------------------------------------------------------
   Stage       PassNo.     Fail No.      Stage     Pass No.    Fail No.
------------------------------------------------------------------------
       1        (\1\)        (\2\)          11           4           8
       2        (\1\)        (\2\)          12           4           9
       3            0        (\2\)          13           5           9
       4            0        (\2\)          14           5          10
       5            1            5          15           6          10
       6            1            6          16           6          10
       7            2            6          17           7          10
       8            2            7          18           8          10
       9            3            7          19           8          10
      10            3            8          20           9          10
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 3--Sampling Plan for Code Letter``A''
                      [Sample inspection criteria]
------------------------------------------------------------------------
   Stage       PassNo.     Fail No.      Stage     Pass No.    Fail No.
------------------------------------------------------------------------
       1        (\1\)        (\2\)          16           6          11
       2        (\1\)        (\2\)          17           7          12
       3        (\1\)        (\2\)          18           7          12
       4            0        (\2\)          19           8          13
       5            0        (\2\)          20           8          13
       6            1            6          21           9          14
       7            1            7          22          10          14
       8            2            7          23          10          15
       9            2            8          24          11          15
      10            3            8          25          11          16
      11            3            8          26          12          16
      12            4            9          27          12          17
      13            5           10          28          13          17
      14            5           10          29          14          17
      15            6           11          30          16          17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 4--Sampling Plan for Code Letter``B''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   PassNo.                 Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)
              5                        0                    (\2\)
              6                        1                        6
              7                        1                        7
              8                        2                        7
              9                        2                        8
             10                        3                        8
             11                        3                        9
             12                        4                        9
             13                        4                       10
             14                        5                       10
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        8                       13
             20                        8                       14
             21                        9                       14
             22                        9                       15
             23                       10                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       18
             30                       13                       19
             31                       14                       19
             32                       14                       20
             33                       15                       20
             34                       16                       21
             35                       16                       21
             36                       17                       22
             37                       17                       22
             38                       18                       22
             39                       18                       22
             40                       21                       22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 5--Sampling Plan for Code Letter``C''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   PassNo.                 Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)

[[Page 384]]

 
              5                        0                    (\2\)
              6                        0                        6
              7                        1                        7
              8                        2                        7
              9                        2                        8
             10                        3                        9
             11                        3                        9
             12                        4                       10
             13                        4                       10
             14                        5                       11
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        7                       13
             20                        8                       14
             21                        8                       14
             22                        9                       15
             23                       10                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       18
             30                       13                       19
             31                       14                       19
             32                       14                       20
             33                       15                       20
             34                       15                       21
             35                       16                       21
             36                       16                       22
             37                       17                       22
             38                       18                       23
             39                       18                       23
             40                       19                       24
             41                       19                       24
             42                       20                       25
             43                       20                       25
             44                       21                       26
             45                       21                       27
             46                       22                       27
             47                       22                       27
             48                       23                       27
             49                       23                       27
             50                       26                       27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


               Table 6--Sampling Plan for Code Letter``D''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   PassNo.                 Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)
              5                        0                    (\2\)
              6                        0                        6
              7                        1                        7
              8                        2                        8
              9                        2                        8
             10                        3                        9
             11                        3                        9
             12                        4                       10
             13                        4                       10
             14                        5                       11
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        7                       13
             20                        8                       14
             21                        8                       14
             22                        9                       15
             23                        9                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       19
             30                       13                       19
             31                       14                       20
             32                       14                       20
             33                       15                       21
             34                       15                       21
             35                       16                       22
             36                       16                       22
             37                       17                       23
             38                       17                       23
             39                       18                       24
             40                       18                       24
             41                       19                       25
             42                       19                       26
             43                       20                       26
             44                       21                       27
             45                       21                       27
             46                       22                       28
             47                       22                       28
             48                       23                       29
             49                       23                       29
             50                       24                       30
             51                       24                       30
             52                       25                       31
             53                       25                       31
             54                       26                       32
             55                       26                       32
             56                       27                       33
             57                       27                       33
             58                       28                       33
             59                       28                       33
             60                       32                       33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


[61 FR 52102, Oct. 4, 1996, as amended at 67 FR 68340, Nov. 8,2002]



          Subpart H_Importation of Nonconforming Marine Engines



Sec. 91.701  Applicability.

    (a) Except where otherwise indicated, this subpart is applicableto 
marine SI engines for which the Administrator has promulgatedregulations 
under this part prescribing emission standards, includingengines 
incorporated into marine vessels or equipment, that areoffered for 
importation or imported

[[Page 385]]

into the United States, butwhich engines, at the time of importation or 
being offered forimportation are not covered by certificates of 
conformity issued undersection 213 and section 206(a) of the Clean Air 
Act as amended (thatis, which are nonconforming marine engines as 
defined inSec. 91.702), and this part. Compliance with regulationsunder 
this subpart does not relieve any person or entity fromcompliance with 
other applicable provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importationof 
marine SI engines and marine vessels or equipment into the 
customsterritory of the United States, as defined in 19 U.S.C. 1202, are 
setforth in U.S. Customs Service regulations.



Sec. 91.702  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by theAdministrator 
under section 213 and section 206(a) of the Act.
    Nonconforming marine engine. A marine SI engine which is notcovered 
by a certificate of conformity prior to importation or beingoffered for 
importation (or for which such coverage has not beenadequately 
demonstrated to EPA). Also, a marine SI engine which wasoriginally 
covered by a certificate of conformity, but subsequentlyaltered or 
modified such that it is no longer in a certifiedconfiguration.
    Original engine manufacturer (OEM). The entity whichoriginally 
manufactured the marine engine.
    United States. United States includes the customs territoryof the 
United States as defined in 19 U.S.C. 1202, and the VirginIslands, Guam, 
American Samoa, and the Commonwealth of the NorthernMariana Islands.



Sec. 91.703  Admission.

    (a) A nonconforming marine SI engine offered for importation mayonly 
be imported into the United States under Sec. 91.704,provided that an 
exemption or exclusion is granted by theAdministrator. Final admission 
shall not be granted unless the marineSI engine is exempted or excluded 
under Sec. 91.704.
    (b) In order to obtain admission the importer must submit to 
theAdministrator a written request for approval containing the 
following:
    (1) Identification of the importer of the marine SI engine and 
theimporter's address, telephone number, and taxpayer 
identificationnumber;
    (2) Identification of the marine SI engine owner, the 
owner'saddress, telephone number, and taxpayer identification number;
    (3) Identification of the marine SI engine including make, 
model,identification number, and original production year;
    (4) Information indicating under what provision of theseregulations 
the marine SI engine is to be imported;
    (5) Identification of the place(s) where the subject marine SIengine 
is to be stored;
    (6) Authorization for EPA enforcement officers to conductinspections 
or testing otherwise permitted by the Act or regulationsthereunder; and
    (7) Such other information as is deemed necessary by 
theAdministrator.



Sec. 91.704  Exemptions and exclusions.

    (a) Individuals and businesses are eligible to importnonconforming 
marine SI engines into the United States only under theprovisions of 
this section.
    (b) Notwithstanding other requirements of this subpart, 
anonconforming marine SI engine entitled to one of the 
temporaryexemptions of this paragraph may be conditionally admitted into 
theUnited States if prior written approval for the conditional 
admissionis obtained from the Administrator. Conditional admission must 
beunder bond. The Administrator may request that the U.S. CustomsService 
require a specific bond amount to ensure compliance with therequirements 
of the Act and this subpart. A written request forapproval from the 
Administrator must contain the identificationrequired in Sec. 91.703(b) 
and information that demonstratesthat the importer is entitled to the 
exemption. Noncompliance withprovisions of this section may result in 
the forfeiture of the totalamount of the bond or exportation of

[[Page 386]]

the marine engine. Thefollowing temporary exemptions are permitted by 
this paragraph:
    (1) Exemption for repairs or alterations. Upon writtenapproval by 
EPA, a person may conditionally import under bond anonconforming marine 
SI engine solely for purpose of repair(s) oralteration(s). The marine SI 
engines may not be operated in the UnitedStates other than for the sole 
purpose of repair or alteration. It maynot be sold or leased in the 
United States and must be exported uponcompletion of the repair(s) or 
alteration(s).
    (2) Testing exemption. A nonconforming test marine SI enginemay be 
conditionally imported under bond by a person subject to therequirements 
of Sec. 91.1005. A test marine SI engine may beoperated in the United 
States provided that the operation is anintegral part of the test. This 
exemption is limited to a period notexceeding one year from the date of 
importation unless a request ismade by the appropriate importer, and 
subsequently granted by EPA,concerning the marine engine in accordance 
withSec. 91.1005(f) for a subsequent one-year period.
    (3) Display exemptions. (i) A nonconforming marine engineintended 
solely for display may be conditionally imported under bondsubject to 
the requirements of Sec. 91.1007.
    (ii) A display marine engine may be imported by any person 
forpurposes related to a business or the public interest. Such 
purposesdo not include collections normally inaccessible or unavailable 
to thepublic on a daily basis, display of a marine engine at a 
dealership,private use, or other purpose that the Administrator 
determines is notappropriate for display exemptions. A display marine 
engine may not besold or leased in the United States and may not be 
operated in theUnited States except for the operation incident and 
necessary to thedisplay purpose.
    (iii) A temporary display exemption is granted for 12 months orfor 
the duration of the display purpose, whichever is shorter.Extensions of 
up to 12 months each are available upon approval by theAdministrator. In 
no circumstances, however, may the total period ofexemption exceed 36 
months.
    (c) Notwithstanding any other requirement of this subpart, amarine 
SI engine may be finally admitted into the United States underthis 
paragraph if prior written approval for such final admission isobtained 
from the Administrator. A request for approval is to containthe 
identification information required in Sec. 91.703(b)(except for Sec. 
91.703(b)(5)) and information thatdemonstrates that the importer is 
entitled to the exemption. Thefollowing exemptions are permitted by this 
paragraph:
    (1) National security exemption. A nonconforming marineengine may be 
imported under the national security exemption found atSec. 91.1008.
    (2) Exemption for marine engines identical to United Statescertified 
versions. (i) Any person (including businesses) iseligible for importing 
a nonconforming marine SI engine into theUnited States under the 
provisions of this paragraph. An exemptionwill be granted if the 
applicant demonstrates to the satisfaction ofthe Administrator that the 
marine engine:
    (A) Is owned by the importer;
    (B) Is not offered for importation for the purpose of resale; and
    (C) Is proven to be identical, in all material respects, to amarine 
SI engine of the same or later model year certified by theOriginal 
Engine Manufacturer for sale in the United States or isproven to have 
been modified to be identical, in all materialrespects, to a marine 
engine of the same or later model year certifiedby the OEM for sale in 
the United States according to complete writteninstructions provided by 
the OEM's United States representative, orhis/her designee.
    (ii) Proof of conformity.
    (A) Documentation submitted pursuant to this section for thepurpose 
of proving conformity of individual marine engines is tocontain 
sufficiently organized data or evidence demonstrating that themarine 
engine identified pursuant to Sec. 91.703(b) isidentical, in all 
material respects, to a marine engine identified inan OEM's application 
for certification.
    (B) If the documentation does not contain all the 
informationrequired by this part, or is not sufficiently organized, EPA 
willnotify the importer of

[[Page 387]]

any areas of inadequacy and that thedocumentation will not receive 
further consideration until therequired information or organization is 
provided.
    (C) If EPA determines that the documentation does not clearly 
orsufficiently demonstrate that a marine engine is eligible 
forimportation under this paragraph, EPA will notify the importer 
inwriting.
    (D) If EPA determines that the documentation clearly andsufficiently 
demonstrates that a marine engine is eligible forimportation under this 
paragraph, EPA will grant approval for finaladmission in writing.
    (d) Foreign diplomatic and military personnel may 
conditionallyimport a nonconforming marine engine without bond. At the 
time ofconditional admission, the importer must submit to the 
Administratorthe written report required in Sec. 91.703(b) (except 
forinformation required by Sec. 91.703(b)(5)) and a statementfrom the 
U.S. Department of State confirming qualification for thisexemption. 
Foreign military personnel may, in lieu of a statement fromthe U.S. 
Department of State, submit to the Administrator a copy oftheir orders 
for duty in the United States. The marine SI engine maynot be sold or 
leased in the United States and must be exported if theindividual's 
diplomatic status or the foreign military orders for dutyin the U.S. are 
no longer applicable, as determined by the Departmentof State, unless 
subsequently brought into conformity with U.S.emission requirements in 
accordance with Sec. 91.704(c)(2).
    (e) Competition exclusion. A nonconforming marine engine may 
beconditionally imported by any person provided the importerdemonstrates 
to the Administrator that the marine engine is used topropel a marine 
vessel used solely for competition and obtains priorwritten approval 
from the Administrator. A nonconforming engineimported pursuant to this 
paragraph may not be operated in the UnitedStates except for that 
operation incident and necessary for thecompetition purpose, unless 
subsequently brought into conformity withUnited States emission 
requirements in accordance withSec. 91.704(c)(2).
    (f) An application for exemption and exclusion provided for 
inparagraphs (b), (c), and (e) of this section shall be mailed to: 
U.S.Environmental Protection Agency, Office of Mobile Sources, 
EnginePrograms & Compliance Division (6403-J), 1200 PennsylvaniaAve., 
NW., Washington, DC 20460, Attention: Imports.



Sec. 91.705  Prohibited acts; penalties.

    (a) The importation of a marine SI engine, including a marineengine 
incorporated into marine vessels or equipment, which is notcovered by a 
certificate of conformity other than in accordance withthis subpart and 
the entry regulations of the U.S. Customs Service isprohibited. Failure 
to comply with this section is a violation ofSec. 91.1103(a)(1) and 
section 213(d) of the Act.
    (b) Unless otherwise permitted by this subpart, during a period 
ofconditional admission, the importer of a marine engine may not:
    (1) Register, license, or operate the marine engine in the 
UnitedStates;
    (2) Sell or lease or offer the marine engine for sale or lease;
    (c) A marine SI engine conditionally admitted pursuant toSec. 
91.704 (b), (d) or (e) and not granted final admissionby the end of the 
period of conditional admission, or within suchadditional time as the 
Administrator and the U.S. Customs Service mayallow, is deemed to be 
unlawfully imported into the United States inviolation of Sec. 
91.1103(a)(1), section 213(d) and section203 of the Act, unless the 
marine engine has been delivered to theU.S. Customs Service for export 
or other disposition under applicableCustoms laws and regulations. A 
marine SI engine not so delivered issubject to seizure by the U.S. 
Customs Service.
    (d) An importer who violates Sec. 91.1103(a)(1), section213(d) and 
section 203 of the Act is subject to a civil penalty underSec. 91.1106 
and section 205 of the Act of not more than$32,500 for each marine 
engine subject to the violation. In additionto the penalty provided in 
the Act, where applicable, a person orentity who imports an engine under 
the exemption provisions ofSec. 91.704(b) and, who fails to deliver the 
marine engineto the U.S. Customs

[[Page 388]]

Service by the end of the period ofconditional admission is liable for 
liquidated damages in the amountof the bond required by applicable 
Customs laws and regulations. Themaximum penalty value listed in this 
paragraph (d) is shown forcalendar year 2004. Maximum penalty limits for 
later years may beadjusted based on the Consumer Price Index. The 
specific regulatoryprovisions for changing the maximum penalties, 
published in 40 CFRpart 19, reference the applicable U.S. Code citation 
on which theprohibited action is based.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July13, 2005]



Sec. 91.706  Treatment of confidential information.

    The provisions for treatment of confidential information asdescribed 
in Sec. 91.7 apply.



Sec. 91.707  Importation of partially complete engines.

    The provisions of 40 CFR 1068.330 apply for importation ofpartially 
complete engines.

[70 FR 40452, July 13, 2005]



             Subpart I_In-Use Testing and Recall Regulations



Sec. 91.801  Applicability.

    The requirements of subpart I are applicable to all marine SIengines 
subject to the provisions of subpart A of part 91.
    (a) Marine engines subject to provisions of subpart B of this 
partare subject to recall regulations specified in 40 CFR part 85, 
subpartS, except for the items set forth in this subsection.
    (b) Reference to section 214 of the Clean Air Act in 40 
CFR85.1801(a) does not apply. Reference to section 216 of the Clean 
AirAct does apply.
    (c) Reference to section 202 of the Act in 40 CFR 85.1802(a) doesnot 
apply. Reference to section 213 of the Act does apply.
    (d) Reference to ``family particulate emission limits asdefined in 
Part 86 promulgated under section 202 of the Act'' in40 CFR 85.1803(a) 
and 85.1805(a)(1) does not apply. Family emissionlimits as defined in 40 
CFR part 89 promulgated under section 213 ofthe Act does apply.
    (e) Add the following paragraph to 40 CFR 85.1805 (a)(9): Atelephone 
number provided by the manufacturer, which may be used toreport 
difficulty in obtaining recall repairs.
    (f) The requirements of the Manufacturer In-use testing programset 
forth in Sec. Sec. 91.803 through 91.805 are waivedfor existing 
technology OB/PWC as defined in Sec. 91.3through model year 2003.
    (1) The Administrator has the discretion to waive the requirementsof 
the Manufacturer In-use testing program set forth in sections91.803 
through 91.805 for existing technology OB/PWC for a specificengine 
family up to model year 2005 if, upon the request of themanufacturer, 
the Administrator determines that the engine family willbe phased out of 
U.S. production by model year 2005. As a condition toreceiving such a 
waiver for either model year 2004 or 2005 or both,the manufacturer must 
discontinue U.S. production according to theschedule upon which the 
Administrator based the waiver. Failure to doso by the manufacturer will 
void ab initio the certificate ofconformity.
    (2) A manufacturer request under paragraph (f)(1) of this 
sectionmust be in writing and must apply to a specific engine family. 
Therequest must identify the engine family designation, the schedule 
forphasing the engine family out of U.S. production, and any 
otherinformation the Administrator may require.



Sec. 91.802  Definitions.

    (a) For the purposes of this subpart, except as otherwiseprovided, 
the definitions in subpart A of this part apply to thissubpart.
    (b) The definitions of 40 CFR Part 85, subpart S,Sec. 85.1801 also 
apply to this Part.



Sec. 91.803  Manufacturer in-use testing program.

    (a) EPA shall annually identify engine families and 
thoseconfigurations within families which the manufacturers must 
thensubject to in-use testing. For each model year, EPA may identify 
thefollowing number of engine

[[Page 389]]

families for testing, based on thenumber of the manufacturer's engine 
families to which this subpart isapplicable produced in that model year:
    (1) For manufactures with three or fewer engine families, EPA 
mayidentify a single engine family.
    (2) For manufacturers with four or more engine families, EPA 
mayidentify a number of engine families that is no greater than twenty-
five percent of the number of engine families to which this subpart 
isapplicable that are produced by the manufacturer in that model year.
    (b) For each engine family identified by EPA, engine 
manufacturersshall perform emission testing of an appropriate sample of 
in-useengines from each engine family. Manufacturers shall submit data 
fromthis in-use testing to EPA.
    (c) Number of engines to be tested. An engine manufacturershall test 
in-use engines from each engine family identified by EPA.Engines to be 
tested shall have accumulated between half and three-quarters of the 
family's useful life. The number of engines to betested by a 
manufacturer will be determined by the following method:
    (1) A minimum of four (4) engines per family provided that noengine 
fails any standard. For each failing engine, two more enginesshall be 
tested until the total number of engines equals ten (10).
    (2) For engine families of less than 500 engines for theidentified 
model year or for engine manufacturers who make less thanor equal to 
2,000 for that model year, a minimum of two (2) enginesper family 
provided that no engine fails any standard. For eachfailing engine, two 
more engines shall be tested until the totalnumber of engines equals ten 
(10).
    (3) If an engine family was certified using carry over emissiondata 
and has been previously tested under paragraph (c) (1) or (2) ofthis 
section (and EPA has not ordered a recall for that family), thenonly one 
engine for that family must be tested. If that one enginefails any 
pollutant, testing must be conducted as outlined atparagraph (c) (1) or 
(2) of this section, whichever is appropriate.
    (d) At the discretion of the Administrator, an engine 
manufacturermay test more engines than the minima described in paragraph 
(c) ofthis section or may concede failure before testing a total of ten 
(10)engines.
    (e) The Administrator will consider failure rates, averageemission 
levels and the existence of any defects among other factorsin 
determining whether to pursue remedial action under this subpart.The 
Administrator may order a recall pursuant toSec. Sec. 91.807-91.814 
before testing reaches thetenth engine.
    (f) The Administrator may approve an alternative to manufacturerin-
use testing, where:
    (1) Engine family production is less than or equal to 200 peryear; 
or
    (2) Engines cannot be obtained for testing because they are 
usedsubstantially in craft which are not conducive to engine removal 
suchas large vessels where the engine can not be removed 
withoutdismantling either the engine or the vessel; or
    (3) Other compelling circumstances associated with the structureof 
the industry and uniqueness of marine engine applications. 
Suchalternatives shall be designed to determine whether the engine 
familyis in compliance in-use.
    (g) Collection of in-use engines. The engine manufacturershall 
procure in-use engines which have been operated for between halfand 
three-quarters of the engine's useful life. The enginemanufacturer may 
test engines from more than one model year in a givenyear. The 
manufacturer shall begin testing within twelve calendarmonths after 
receiving notice that EPA has identified a particularengine family for 
testing and shall complete testing of such enginefamily within twelve 
calendar months from the start of such testing.Test engines may be 
procured from sources associated with the enginemanufacturer (i.e., 
manufacturer established fleet engines, etc.) orfrom sources not 
associated with the manufacturer (i.e., consumer-owned engines, 
independently-owned fleet engines, etc.).

[61 FR 52102, Oct. 4, 1996, as amended at 67 FR 68340, Nov. 8,2002]

[[Page 390]]



Sec. 91.804  Maintenance, procurement and testing of in-use engines.

    (a) A test engine must have a maintenance and use 
historyrepresentative of actual in-use conditions.
    (1) To comply with this requirement a manufacturer must 
obtaininformation from the end users regarding the accumulated 
usage,maintenance, operating conditions, and storage of the test 
engines.
    (2) Documents used in the procurement process must be maintainedas 
required in Sec. 91.121.
    (b) The manufacturer may perform minimal set-to-spec maintenanceon 
components of a test engine that are not subject to parameteradjustment. 
Maintenance may include only that which is listed in theowner's 
instructions for engines with the amount of service and age ofthe 
acquired test engine. Documentation of all maintenance andadjustments 
shall be maintained and retained as required bySec. 91.121.
    (c) At least one valid emission test, according to the testprocedure 
outlined in subpart E of this part, is required for each in-use engine.
    (d) The Administrator may waive portions or requirements of thetest 
procedure, if any, that are not necessary to determine in-usecompliance.
    (e) If a selected in-use engine fails to comply with anyapplicable 
emission standards, the manufacturer shall determine thereason for 
noncompliance. The manufacturer must report all suchreasons of 
noncompliance within fifteen days of completion of testing.



Sec. 91.805  In-use test program reporting requirements.

    (a) The manufacturer shall electronically submit to theAdministrator 
within three (3) months of completion of testing allemission testing 
results generated from the in-use testing program.The following 
information must be reported for each test engine:
    (1) Engine family,
    (2) Model,
    (3) Engine serial number,
    (4) Date of manufacture,
    (5) Estimated hours of use,
    (6) Date and time of each test attempt,
    (7) Results (if any) of each test attempt,
    (8) Results of all emission testing,
    (9) Summary of all maintenance and/or adjustments performed,
    (10) Summary of all modifications and/or repairs,
    (11) Determinations of noncompliance.
    (b) The manufacturer must electronically submit the results of 
itsin-use testing with a pre-approved information heading. 
TheAdministrator may exempt manufacturers from this requirement 
uponwritten request with supporting justification.
    (c) All testing reports and requests for approvals made under 
thissubpart shall be addressed to: Manager, Engine Compliance 
ProgramsGroup 6403-J, U.S. Environmental Protection Agency, 
1200Pennsylvania Ave., NW., Washington, DC 20460.
    (d) The Administrator may approve and/or require modifications toa 
manufacturer's in-use testing programs.



Sec. 91.806  Voluntary emissions recall.

    (a) Prior to an EPA ordered recall, the manufacturer may perform 
avoluntary emissions recall pursuant to regulations atSec. 91.904 of 
this part. Such manufacturer is subject tothe reporting requirements at 
Sec. 91.905 of this part.
    (b) Once EPA determines that a substantial number of engines failto 
conform with the requirements of section 213 of the Act or thispart, the 
manufacturer will not have the option of a voluntaryemissions recall.



   Subpart J_Emission-related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program



Sec. 91.901  Applicability.

    The requirements of this subpart J are applicable to all 
marineengines subject to the provisions of subpart A of this part 91. 
Therequirement to report emission-related defects affecting a given 
classor category of engines remains applicable for five years from the 
endof the model year in which such engines were manufactured.

[[Page 391]]



Sec. 91.902  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 91.903  Applicability to part 85, subpart T.

    (a) Marine SI engines subject to provisions of subpart A of thispart 
are subject to emission defect reporting requirements specifiedin 40 CFR 
Part 85, subpart T, except for the items set forth in thissection.
    (b) 40 CFR 85.1901 does not apply. See Sec. 91.901.
    (c) Reference to the Clean Air Act, 42 U.S.C. 1857 in 40 
CFR85.1902(a) does not apply. Reference to the Clean Air Act, 42 
U.S.C.7401 does apply.
    (d) Reference to the ``approved Application forCertification 
required by 40 CFR 86.077-22 and like provisionsof Part 85 and Part 86 
of Title 40 of the Code of FederalRegulations'' does not apply. 
Reference to the approvedapplication for certification required by 
91.108 and like provisionsof Part 91 does apply.
    (e) Reference to section 202(d) of the Act inSec. 85.1902(c) does 
not apply. Reference to section 202(d)and section 213 of the Act does 
apply.
    (f) Reference to section 214 of the Act inSec. 85.1902(e) and (f) 
does not apply. Reference to section216 of the Act does apply.



Sec. 91.904  Voluntary emission recall.

    (a) A manufacturer, prior to initiating a voluntary emissionrecall 
program, must submit to the EPA the following information for a15 day 
review and comment period:
    (1) A description of each class or category of engines 
recalled,including the number of engines to be recalled, the model year, 
andsuch other information as may be required to identify the 
enginesrecalled;
    (2) A description of the specific modifications, 
alterations,repairs, corrections, adjustments, or other changes to be 
made tocorrect the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer willnotify 
engine owners including copies of any letters of notificationto be sent 
to engine owners;
    (4) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer conditions eligibility for repair under 
therecall plan, and a description of the proof to be required of 
anengine owner to demonstrate compliance with any such conditions;
    (5) A description of the procedure to be followed by engine ownersto 
obtain correction of the nonconformity. This may includedesignation of 
the date on or after which the owner can have thenonconformity remedied, 
the time reasonably necessary to perform thelabor to remedy the defect, 
and the designation of facilities at whichthe defect can be remedied;
    (6) A description of the class of persons other than dealers 
andauthorized warranty agents of the manufacturer who will remedy 
thedefect; and
    (7) A description of the system by which the manufacturer willassure 
that an adequate supply of parts is available to perform therepair under 
the plan.
    (b) The manufacturer must submit at least one report on theprogress 
of the recall campaign. This report is submitted one yearfrom the date 
notification begins and includes the followinginformation:
    (1) The methods used to notify both engine owners, dealers andother 
individuals involved in the recall campaign;
    (2) The number of engines known or estimated to be affected by 
theemission-related defect and an explanation of the means by which 
thisnumber was determined;
    (3) The number of engines actually receiving repair under theplan;
    (4) The number of engine owners, dealers, and other 
individualsinvolved in the recall campaign that have been notified and 
the numberof engines that have actually received repair; and
    (5) The number of engines determined to be ineligible for 
remedialaction due to a failure to properly maintain or use such 
engines.



Sec. 91.905  Reports, voluntary recall plan filing, record retention.

    (a) The defect report, voluntary recall plan, and the 
voluntaryrecall progress report shall be sent to: Manager, Engine 
CompliancePrograms

[[Page 392]]

Group 6403-J, Environmental Protection Agency,1200 Pennsylvania Ave., 
NW., Washington, DC 20460.
    (b) The information gathered by the manufacturer to compile 
thereports must be retained for not less than five years from the date 
ofthe manufacture of the engines and must be made available to 
dulyauthorized officials of the EPA upon request.



Sec. 91.906  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart 
willnot affect a manufacturer's responsibility to file reports 
orapplications, obtain approval, or give notice under any provision 
oflaw.



Sec. 91.907  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report 
isinconclusive as to the existence of a defect subject to the 
warrantyprovided by section 207(a) of the Act.
    (b) A manufacturer may include on each page of its Emission 
DefectInformation Report a disclaimer stating that the filing of a 
DefectInformation Report pursuant to these regulations is not conclusive 
asto the applicability of the warranty provided by subpart M of 
thispart.



         Subpart K_Exclusion and Exemption of Marine SI Engines



Sec. 91.1001  Applicability.

    The requirements of this subpart K are applicable to all 
marinespark-ignition propulsion engines subject to the provisions of 
subpartA of this part 91.



Sec. 91.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions also apply to this subpart:
    Exemption means exemption from the prohibitions ofSec. 91.1103.
    Export exemption means an exemption granted underSec. 91.1104(b) 
for the purpose of exporting new marine SIengines.
    National security exemption means an exemption which may begranted 
under Sec. 91.1104(b) for the purpose of nationalsecurity.
    Manufacturer-owned marine engine means an uncertified marineSI 
engine owned and controlled by a marine SI engine manufacturer andused 
in a manner not involving lease or sale by itself or in a marinevessel 
or piece of equipment employed from year to year in theordinary course 
of business for product development, production methodassessment, or 
market promotion purposes.
    Testing exemption means an exemption which may be grantedunder Sec. 
91.1104(b) for the purpose of research,investigations, studies, 
demonstrations or training, but not includingnational security.



Sec. 91.1003  Exclusions based on section 216(10) of the Act.

    (a) For the purpose of determining the applicability of 
section216(10) of the Act, any marine SI engine as that term is defined 
insubpart A of this part, is deemed a nonroad engine.
    (b) EPA will maintain a list of models of marine SI engines, andthe 
marine vessels which use such engines, that have been determinedto be 
excluded because they are used solely for competition. This listwill be 
available to the public and may be obtained by writing to thefollowing 
address: Group Manager, Engine Compliance Programs Group,Engine Programs 
and Compliance Division (6403J), EnvironmentalProtection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA willmake 
written determinations as to whether certain engines are or arenot 
marine SI engines. Engines that are determined not to be marine 
SIengines are excluded from regulations under this part but may 
besubject to regulations under another part.



Sec. 91.1004  Who may request an exemption.

    (a) Any person may request a testing exemption underSec. 91.1005.
    (b) Any marine SI engine manufacturer may request a nationalsecurity 
exemption under Sec. 91.1008.

[[Page 393]]

    (c) For marine SI engine manufacturers, marine SI engines forexport 
purposes are exempt without application, subject to theprovisions of 
Sec. 91.1009.
    (d) For eligible manufacturers, as determined bySec. 91.1006, 
manufacturer-owned marine SI engines areexempt without application, 
subject to the provisions ofSec. 91.1006.
    (e) For any person, display marine SI engines are exempt 
withoutapplication, subject to the provisions of Sec. 91.1007.



Sec. 91.1005  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate 
thefollowing:
    (1) That the proposed test program has a purpose which constitutesan 
appropriate basis for an exemption in accordance withSec. 91.1104(b);
    (2) That the proposed test program necessitates the granting of 
anexemption;
    (3) That the proposed test program is reasonable in scope; and
    (4) That the proposed test program exhibits a degree of 
controlconsonant with the purpose of the program and the EPA's 
monitoringrequirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describewhat 
constitutes a sufficient demonstration for each of the fouridentified 
elements.
    (b) With respect to the purpose of the proposed test program, 
anappropriate purpose would be research, investigations, 
studies,demonstrations, or training, but not national security. A 
concisestatement of purpose is a required item of information.
    (c) With respect to the necessity that an exemption be 
granted,necessity arises from an inability to achieve the stated purpose 
in apracticable manner without performing or causing to be performed 
oneor more of the prohibited acts under Sec. 91.1103. Inappropriate 
circumstances, time constraints may be a sufficient basisfor necessity, 
but the cost of certification alone, in the absence ofextraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit 
aduration of reasonable length and affect a reasonable number ofengines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration.
    (2) The maximum number of marine engines involved.
    (e) With respect to control, the test program must 
incorporateprocedures consistent with the purpose of the test and be 
capable ofaffording EPA monitoring capability. As a minimum, required 
items ofinformation include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated withthe 
test;
    (4) The ownership arrangement with regard to the engines involvedin 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will 
beidentified, recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new marine SI engines may request a 
testingexemption to cover marine SI engines intended for use in test 
programsplanned or anticipated over the course of a subsequent one-
yearperiod. Unless otherwise required by the Manager, Engine 
CompliancePrograms Group, a manufacturer requesting such an exemption 
need onlyfurnish the information required by paragraphs (a)(1) and 
(d)(2) ofthis section along with a description of the recordkeeping and 
controlprocedures that will be employed to assure that the engines are 
usedfor purposes consistent with section 91.1104(b).



Sec. 91.1006  Manufacturer-owned exemption and precertification exemption.

    (a) Except as provided in paragraph (b) of this section, 
anymanufacturer-owned marine SI engine, as defined bySec. 91.1002, is 
exempt from compliance withSec. 91.1103, without application, if the 
manufacturercomplies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed information on 
eachexempted engine:
    (i) Engine identification number,

[[Page 394]]

    (ii) Use of the engine on exempt status and
    (iii) Final disposition of any engine removed from exempt status.
    (2) The manufacturer must provide right of entry and access tothese 
records to EPA authorized representatives as outlined inSec. 91.505.
    (3) Unless the requirement is waived or an alternative procedureis 
approved by the Director, Engine Programs & ComplianceDivision, the 
manufacturer must permanently affix a label to eachmarine engine on 
exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine,
    (ii) Be attached in such a manner that it cannot be removedwithout 
destruction or defacement,
    (iii) State in the English language/and in block letters andnumerals 
of a color that contrasts with the background of the label,the following 
information:
    (A) The label heading ``Emission ControlInformation;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and modelyear 
of engine; or person or office to be contacted for furtherinformation 
about the engine;
    (D) The statement ``This marine SI engine is exempt from 
theprohibitions of 40 CFR 91.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents 
amanufacturer from including any other information it desires on 
thelabel.



Sec. 91.1007  Display exemption.

    An uncertified marine SI engine is a display engine when it is tobe 
used solely for display purposes, will only be operated incidentand 
necessary to the display purpose, and will not be sold unless 
anapplicable certificate of conformity has been received or the 
enginehas been finally admitted pursuant to subpart H of this part. 
Adisplay engine is exempt without application.



Sec. 91.1008  National security exemption.

    (a)(1) Any marine SI engine, otherwise subject to this part, whichis 
used in a vessel that exhibits substantial features ordinarilyassociated 
with military combat such as armor and/or permanentlyaffixed weaponry 
and which will be owned and/or used by an agency ofthe Federal 
government with responsibility for national defense, willbe exempt from 
these regulations for purposes of national security. Norequest for 
exemption is necessary.
    (2) Manufacturers may request a national security exemption forany 
marine SI engine, otherwise subject to this part, which does notmeet the 
conditions described in paragraph (a)(1) of this section. Amanufacturer 
requesting a national security exemption must state thepurpose for which 
the exemption is required and the request must beendorsed by an agency 
of the federal government charged withresponsibility for national 
defense.
    (b) EPA will maintain a list of models of marine SI engines (andthe 
vessels which use them) that have been granted a national 
securityexemption under paragraph (a)(2) of this section. This list will 
beavailable to the public and may be obtained by writing to thefollowing 
address: Manager, Engine Compliance Programs Group6403-J, Environmental 
Protection Agency, 1200 PennsylvaniaAve., NW., Washington, DC 20460.



Sec. 91.1009  Export exemptions.

    (a) A new marine SI engine intended solely for export, and solabeled 
or tagged on the outside of the container and on the engineitself, is 
subject to the provisions of Sec. 91.1103, unlessthe importing country 
has emission standards for new marine engineswhich differ from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a 
countryhaving no standards, whatsoever, is deemed to be a country 
havingemission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have inforce 
marine SI emission standards identical to U.S. EPA standards andhave so 
notified EPA. This list may be obtained by writing to thefollowing 
address: Manager, Engine Compliance Programs Group6403-J, Environmental 
Protection Agency, 1200 PennsylvaniaAve.,

[[Page 395]]

NW., Washington, DC 20460. New marine SI engines exportedto such 
countries must comply with EPA certification regulations.
    (d) It is a condition of any exemption for the purpose of 
exportunder Sec. 91.1004(b) that such exemption be void abinitio with 
respect to a new marine SI engine intended solely forexport if such 
marine SI engine is sold, or offered for sale, to anultimate purchaser 
in the United States for purposes other thanexport.



Sec. 91.1010  Granting of exemptions.

    (a) If upon completion of the review of an exemption request 
madepursuant to Sec. 91.1005 or Sec. 91.1008, EPAdetermines it is 
appropriate to grant such an exemption, a memorandumof exemption will be 
prepared and submitted to the person requestingthe exemption. The 
memorandum shall set forth the basis for theexemption, its scope, and 
such terms and conditions as are deemednecessary. Such terms and 
conditions shall generally include, but arenot limited to, agreements by 
the applicant to conduct the exemptactivity in the manner described to 
EPA, create and maintain adequaterecords accessible to EPA at reasonable 
times, employ labels for theexempt engines setting forth the nature of 
the exemption, takeappropriate measures to assure that the terms of the 
exemption aremet, and advise EPA of the termination of the activity and 
theultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of thissection 
is deemed to cover any subject engine only to the extent thatthe 
specified terms and conditions are complied with. A breach of anyterm or 
condition causes the exemption to be void ab initio withrespect to any 
engine. Consequently, the causing or the performing ofan act prohibited 
under Sec. 91.1103(a) (1) or (3), otherthan in strict conformity with 
all terms and conditions of thisexemption renders the person to whom the 
exemption is granted, and anyother person to whom the provisions of 
Sec. 91.1103 areapplicable, liable under sections 204 and 205 of the 
Act.



Sec. 91.1011  Submission of exemption requests.

    Requests for exemption or further information concerningexemptions 
and/or the exemption request review procedure should beaddressed to: 
Manager, Engine Compliance Programs Group 6403J,Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460.



Sec. 91.1012  Treatment of confidential information.

    The provisions for treatment of confidential information describedin 
Sec. 91.7 apply to this subpart.



       Subpart L_Prohibited Acts and General EnforcementProvisions



Sec. 91.1101  Applicability.

    The requirements of subpart L are applicable to all marine 
enginesand vessels subject to the provisions of subpart A of this part 
91.



Sec. 91.1102  Definitions.

    The definitions in subpart A of this part apply to this subpart.All 
terms not defined herein or in subpart A have the meaning giventhem in 
the Act.



Sec. 91.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new marine SI engines 
orvessels for distribution in commerce, the sale, the offering for 
sale,or the introduction, or delivery for introduction, into commerce, 
ofany new marine SI engine manufactured after the applicable 
effectivedate under this part unless such engine is covered by a 
certificate ofconformity issued (and in effect) under regulations found 
in thispart.
    (ii) In the case of any person, except as provided by regulationof 
the Administrator, the importation into the United States of anynew 
marine SI engine manufactured after the applicable effective dateunder 
this part unless such engine is covered by a certificate ofconformity 
issued (and in effect) under regulations found in thispart.
    (2)(i) For a person to fail or refuse to permit access to orcopying 
of records

[[Page 396]]

or to fail to make reports or provideinformation required under Sec. 
91.1104.
    (ii) For a person to fail or refuse to permit entry, testing 
orinspection authorized under Sec. 91.118, 91.505 or 91.1104.
    (iii) For a person to fail or refuse to perform tests, or to 
havetests performed as required under Sec. 91.118 orSec. 91.1104.
    (iv) For a person to fail to establish or maintain records 
asrequired under Sec. 91.1104.
    (3)(i) For a person to remove or render inoperative a device 
orelement of design installed on or in a marine engine in compliancewith 
regulations under this part prior to its sale and delivery to 
theultimate purchaser, or for a person knowingly to remove or 
renderinoperative such a device or element of design after the sale 
anddelivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, orinstall, 
a part or component intended for use with, or as part of, amarine SI 
engine, where a principal effect of the part or component isto bypass, 
defeat, or render inoperative a device or element of designinstalled on 
or in a marine SI engine in compliance with regulationsissued under this 
part, and where the person knows or should know thatthe part or 
component is being offered for sale or installed for thisuse or put to 
such use.
    (4) For a manufacturer of a new marine SI engine subject tostandards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver intocommerce, a 
marine SI engine unless the manufacturer has complied withthe 
requirements of Sec. 91.1203.
    (ii) To sell, offer for sale, or introduce or deliver intocommerce, 
a marine SI engine unless a label or tag is affixed to theengine in 
accordance with regulations under this part.
    (iii) To provide directly or indirectly in any communication tothe 
ultimate purchaser or a subsequent purchaser that the coverage ofa 
warranty under the Act is conditioned upon use of a part, component,or 
system manufactured by the manufacturer or a person acting for 
themanufacturer or under its control, or conditioned upon 
serviceperformed by such persons, except as provided in subpart M of 
thispart.
    (iv) To fail or refuse to comply with the terms and conditions ofthe 
warranty under subpart M of this part.
    (5) For a manufacturer of new marine vessels or equipment 
todistribute in commerce, sell, offer for sale, or introduce 
intocommerce, marine vessels or equipment which contain an engine 
notcovered by a certificate of conformity.
    (b) For the purposes of enforcement of this part, the 
followingapply:
    (1) Nothing in paragraph (a) of this section is to be construed 
torequire the use of manufacturer parts in maintaining or repairing 
amarine SI engine.
    (2) Actions for the purpose of repair or replacement of a deviceor 
element of design or any other item are not considered prohibitedacts 
under Sec. 91.1103(a) if the actions are a necessaryand temporary 
procedure, the device or element is replaced uponcompletion of the 
procedure, and the action results in the properfunctioning of the device 
or element of design.
    (3) Actions for the purpose of a conversion of a marine SI enginefor 
use of a clean alternative fuel (as defined in Title II of theAct) are 
not considered prohibited acts underSec. 91.1103(a) if:
    (i) The engine complies with the applicable standard whenoperating 
on the alternative fuel, and the device or element isreplaced upon 
completion of the conversion procedure, and
    (ii) In the case of engines converted to dual fuel or flexibleuse, 
the action results in proper functioning of the device or elementwhen 
the marine SI engine operates on conventional fuel.
    (4) A new marine spark-ignition engine intended solely to replacean 
engine in an outboard engine, or other engine to which this part 
isapplicable as determined by Sec. Sec. 91.1, 91.101, 91.106that was 
originally produced with an engine manufactured prior to theapplicable 
implementation date as described inSec. Sec. 91.2, and 91.106 and 
91.205(a)(1), or that wasoriginally produced in a model year in which 
less stringent emissionstandards under this part were in effect shall 
not be subject to therequirements of Sec. 91.106 or the prohibitions of 
paragraph(a)(1) of this section provided that:

[[Page 397]]

    (i) The engine manufacturer has ascertained that no engineproduced 
by itself or the manufacturer of the engine that is beingreplaced, if 
different, and certified to the requirements of thissubpart, is 
available with the appropriate physical or performancecharacteristics to 
repower the outboard, personal watercraft orjetboat; and
    (ii) Unless an alternative control mechanism is approved inadvance 
by the Administrator, the engine manufacturer or its agenttakes 
ownership and possession of the engine being replaced; and
    (iii) The replacement engine is clearly labeled with the 
followinglanguage, or similar alternate language approved in advance by 
theAdministrator:

This engine does not comply with Federal nonroad or on-highway emission 
requirements. Sale or installation of this engine forany purpose other 
than as a replacement engine in a marine vesselwhose original engine was 
not certified, or was certified to lessstringent emission standards than 
those that apply to the year ofmanufacture of this engine, is a 
violation of Federal law subject tocivil penalty; and

    (iv) Where the replacement engine is intended to replace an 
enginebuilt after the applicable implementation date as described 
inSec. Sec. 91.2, 91.106 and 91.205(a)(1), but built to lessstringent 
emission standards than are currently applicable, thereplacement engine 
shall be identical in all material respects to acertified configuration 
of the same or later model year as the enginebeing replaced; and
    (v) In cases where an engine is to be imported for 
replacementpurposes under the provisions of this paragraph (b)(4), the 
term``engine manufacturer'' does not apply to an individual orother 
entity that does not possess a current Certificate of Conformityissued 
by EPA under this part.

[61 FR 52102, Oct. 4, 1996, as amended at 62 FR 42644, Aug. 7,1997; 65 
FR 24314, Apr. 25, 2000]



Sec. 91.1104  General enforcement provisions.

    (a) Information collection provisions. (1) Everymanufacturer of new 
marine SI engines and other persons subject to therequirements of this 
part must establish and maintain records, performtests where such 
testing is not otherwise reasonably available underthis part, make 
reports and provide information the Administrator mayreasonably require 
to determine whether the manufacturer or otherperson has acted or is 
acting in compliance with this part or tootherwise carry out the 
provisions of this part, and must, uponrequest of an officer or employee 
duly designated by theAdministrator, permit the officer or employee at 
reasonable times tohave access to and copy such records.
    (2) For purposes of enforcement of this part, an officer oremployee 
duly designated by the Administrator, upon presentingappropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of 
themanufacturer, or of any person whom the manufacturer engaged 
toperform any activity required under paragraph (a)(1) of this 
section,for the purposes of inspecting or observing any activity 
conductedpursuant to paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, 
andfacilities used in performing an activity required by paragraph 
(a)(1)of this section, by the manufacturer or by a person whom 
themanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a newmarine 
engine from compliance with Sec. 91.1103 upon suchterms and conditions 
as the Administrator may find necessary for thepurpose of export, 
research, investigations, studies, demonstrations,or training, or for 
reasons of national security.
    (c) Importation provision. (1) A new marine SI engine, orvessel 
offered for importation or imported by a person in violation ofSec. 
91.1103 shall be refused admission into the UnitedStates, but the 
Secretary of the Treasury and the Administrator may,by joint regulation, 
provide for deferring a final determination as toadmission and 
authorizing the delivery of such a marine SI engineoffered for import to 
the owner or consignee thereof upon such termsand conditions (including 
the furnishing of

[[Page 398]]

a bond) as may appearto them appropriate to insure that the marine SI 
engine will bebrought into conformity with the standards, requirements, 
andlimitations applicable to it under this part.
    (2) If a marine SI engine is finally refused admission under 
thisparagraph, the Secretary of the Treasury shall cause 
dispositionthereof in accordance with the customs laws unless it is 
exported,under regulations prescribed by the Secretary, within 90 days 
of thedate of notice of the refusal or additional time as may be 
permittedpursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not bemade 
in such manner as may result, directly or indirectly, in thesale, to the 
ultimate consumer, of a new marine SI engine that failsto comply with 
applicable standards of the Administrator under thispart.
    (d) Export provision. A new marine SI engine intended solelyfor 
export, and so labeled or tagged on the outside of the containerand on 
the engine itself, shall be subject to the provisions ofSec. 91.1103, 
except that if the country that is to receivethe engine has emission 
standards that differ from the standardsprescribed under subpart B of 
this part, then the engine must complywith the standards of the country 
that is to receive the engine.



Sec. 91.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction 
torestrain violations of Sec. 91.1103.
    (b) Actions to restrain such violations must be brought by and inthe 
name of the United States. In an action, subpoenas for witnesseswho are 
required to attend a district court in any district may runinto any 
other district.



Sec. 91.1106  Penalties.

    (a) Violations. A violation of the requirements of thissubpart is a 
violation of the applicable provisions of the Act,including sections 203 
and 213(d), and is subject to the penaltyprovisions thereunder.
    (1) A person who violates Sec. 91.1103 (a)(1), (a)(4),or (a)(5), or 
a manufacturer or dealer who violatesSec. 91.1103(a)(3)(i), is subject 
to a civil penalty of notmore than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violatesSec. 
91.1103(a)(3)(i) or any person who violatesSec. 91.1103(a)(3)(ii) is 
subject to a civil penalty of notmore than $2,750 for each violation.
    (3) A violation with respect to Sec. 91.1103 (a)(1), (a)(3)(i), 
(a)(4), or (a)(5) constitutes a separate offense with respectto each 
marine SI engine.
    (4) A violation with respect to Sec. 91.1103(a)(3)(ii)constitutes a 
separate offense with respect to each part or component.Each day of a 
violation with respect to Sec. 91.1103(a)(6)constitutes a separate 
offense.
    (5) A person who violates Sec. 91.1103 (a)(2) or (a)(6)is subject 
to a civil penalty of not more than $32,500 per day ofviolation.
    (6) The maximum penalty values listed in this section are shownfor 
calendar year 2004. Maximum penalty limits for later years may 
beadjusted based on the Consumer Price Index. The specific 
regulatoryprovisions for changing the maximum penalties, published in 40 
CFRpart 19, reference the applicable U.S. Code citation on which 
theprohibited action is based.
    (b) Civil actions. The Administrator may commence a civilaction to 
assess and recover any civil penalty under paragraph (a) ofthis section.
    (1) An action under this paragraph may be brought in the 
districtcourt of the United States for the district in which the 
violation isalleged to have occurred or in which the defendant resides 
or has theAdministrator's principal place of business, and the court 
shall havejurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessedunder 
this paragraph, the court is to take into account the gravity ofthe 
violation, the economic benefit or savings (if any) resulting fromthe 
violation, the size of the violator's business, the violator'shistory of 
compliance with Title II of the Act, action taken to remedythe 
violation, the effect of the penalty on the violator's ability 
tocontinue in

[[Page 399]]

business, and such other matters as justice mayrequire.
    (3) In any such action, subpoenas for witnesses who are requiredto 
attend a district court in any district may run into any otherdistrict.
    (c) Administrative assessment of certainpenalties--(1) 
Administrative penalty authority. In lieu ofcommencing a civil action 
under paragraph (b) of this section, theAdministrator shall assess any 
civil penalty prescribed in paragraph(a) of this section, except that 
the maximum amount of penalty soughtagainst each violator in a penalty 
assessment proceeding can notexceed $270,000, unless the Administrator 
and the Attorney Generaljointly determine that a matter involving a 
larger penalty amount isappropriate for administrative penalty 
assessment. Any suchdetermination by the Administrator and the Attorney 
General is notsubject to judicial review. Assessment of a civil penalty 
is made byan order made on the record after opportunity for a hearing 
held inaccordance with the procedures found at part 22 of this chapter. 
TheAdministrator may compromise, or remit, with or without 
conditions,any administrative penalty which may be imposed under this 
section.
    (2) Determining amount. In determining the amount of anycivil 
penalty assessed under this subsection, the Administrator is totake into 
account the gravity of the violation, the economic benefitor savings (if 
any) resulting from the violation, the size of theviolator's business, 
the violator's history of compliance with TitleII of the Act, action 
taken to remedy the violation, the effect of thepenalty on the 
violator's ability to continue in business, and suchother matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by theAdministrator 
under this paragraph does not affect or limit theAdministrator's 
authority to enforce any provisions of this part;except that any 
violation with respect to which the Administrator hascommenced and is 
diligently prosecuting an action under this part, orfor which the 
Administrator has issued a final order not subject tofurther judicial 
review and for which the violator has paid a penaltyassessment under 
this part may not be the subject of a civil penaltyaction under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this part affects 
aperson's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsectionis to 
become final 30 days after its issuance unless a petition forjudicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civilpenalty is 
assessed in accordance with this subsection may seek reviewof the 
assessment in the United States District Court for the Districtof 
Columbia or for the district in which the violation is alleged tohave 
occurred, in which such person resides, or where the person'sprinciple 
place of business is located, within the 30-day periodbeginning on the 
date a civil penalty order is issued. The person mustsimultaneously send 
a copy of the filing by certified mail to theAdministrator and the 
Attorney General.
    (ii) The Administrator must file in the court within 30 days 
acertified copy, or certified index, as appropriate, of the record 
onwhich the order was issued. The court is not to set aside or remandany 
order issued in accordance with the requirements of this paragraphunless 
substantial evidence does not exist in the record, taken as awhole, to 
support the finding of a violation or unless theAdministrator's 
assessment of the penalty constitutes an abuse ofdiscretion, and the 
court is not to impose additional civil penaltiesunless the 
Administrator's assessment of the penalty constitutes anabuse of 
discretion. In any proceedings, the United States may seek torecover 
civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessmentof a 
civil penalty imposed by the Administrator as provided in thispart after 
the order making the assessment has become final or after acourt in an 
action brought under paragraph (c)(5) of this section hasentered a final 
judgment in favor of the Administrator, theAdministrator is to request 
that the Attorney General bring a civilaction in an appropriate district 
court to recover the amount

[[Page 400]]

assessed (plus interest at rates established pursuant to 
section6621(a)(2) of the Internal Revenue Code of 1986 from the date of 
thefinal order or the date of final judgment, as the case may be). 
Insuch an action, the validity, amount, and appropriateness of 
thepenalty is not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of 
anassessment of a civil penalty as described in paragraph (c)(6)(i) 
ofthis section is required to pay, in addition to that amount 
andinterest, the United States' enforcement expenses, 
includingattorney's fees and costs for collection proceedings, and a 
quarterlynonpayment penalty for each quarter during which the failure to 
paypersists. The nonpayment penalty is an amount equal to 10 percent 
ofthe aggregate amount of that person's penalties and 
nonpaymentpenalties which are unpaid as of the beginning of such 
quarter.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July13, 2005]



Sec. 91.1107  Warranty provisions.

    (a) The manufacturer of each marine SI engine must warrant to 
theultimate purchaser and each subsequent purchaser that the engine 
isdesigned, built, and equipped so as to conform at the time of salewith 
applicable regulations under section 213 of the Act, and is freefrom 
defects in materials and workmanship which cause such engine tofail to 
conform with applicable regulations for its warranty period(as 
determined under Sec. 91.1203).
    (b) In the case of an engine part, the manufacturer or rebuilderof 
the part may certify according to Sec. 85.2112 of thischapter that use 
of the part will not result in a failure of theengine to comply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any 
enginewarranted under this part is responsible for the proper 
maintenance ofthe engine. Proper maintenance includes replacement and 
service, atthe owner's expense at a service establishment or facility of 
theowner's choosing, such items as spark plugs, points, condensers, 
andany other part, item, or device related to emission control (but 
notdesigned for emission control) under the terms of the last sentence 
ofsection 207(a)(3) of the Act, unless such part, item, or device 
iscovered by any warranty not mandated by this Act.



Sec. 91.1108  In-use compliance provisions.

    (a) Effective with respect to marine engine and vesselsmanufactured 
during model years 1997 and after:
    (1) If the Administrator determines that a substantial number ofany 
class or category of engines, although properly maintained andused, do 
not conform to the regulations prescribed under section 213of the Act 
when in actual use throughout their useful life (as definedunder Sec. 
91.105(a)), the Administrator shall immediatelynotify the manufacturer 
of such nonconformity and require themanufacturer to submit a plan for 
remedying the nonconformity of theengines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformityof 
any such engines which are properly used and maintained will beremedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination 
ofnonconformity and so advises the Administrator, the Administratorshall 
afford the manufacturer and other interested persons anopportunity to 
present their views and evidence in support thereof ata public hearing. 
Unless, as a result of such hearing, theAdministrator withdraws such 
determination of nonconformity, theAdministrator shall, within 60 days 
after the completion of suchhearing, order the manufacturer to provide 
prompt notification of suchnonconformity in accordance with paragraph 
(a)(2) of this section. Themanufacturer shall comply in all respects 
with the requirements ofsubpart I of this part.
    (2) Any notification required to be given by the manufacturerunder 
paragraph (a)(1) of this section with respect to any class orcategory of 
engines shall be given to dealers, ultimate purchasers,and subsequent 
purchasers (if known) in such manner and containingsuch information as 
required in subparts I and J of this part.

[[Page 401]]

    (3)(i) The manufacturer shall furnish with each new enginewritten 
instructions for the proper maintenance and use of the engineby the 
ultimate purchaser as required under Sec. 91.1204.The manufacturer 
shall provide in boldface type on the first page ofthe written 
maintenance instructions notice that maintenance,replacement, or repair 
of the emission control devices and systems maybe performed by any 
engine repair establishment or individual usingany engine part which has 
been certified as provided inSec. 91.1107(b).
    (ii) The instruction under paragraph (a)(3)(i) of this sectionmust 
not include any condition on the ultimate purchaser's using, 
inconnection with such engine, any component or service (other than 
acomponent or service provided without charge under the terms of 
thepurchase agreement) which is identified by brand, trade, or 
corporatename. Subject instructions also must not directly or 
indirectlydistinguish between service performed by the franchised 
dealers ofsuch manufacturer, or any other service establishments with 
which suchmanufacturer has a commercial relationship, and service 
performed byindependent engine repair facilities with which such 
manufacturer hasno commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section maybe 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the enginewill 
function properly only if the component or service so identifiedis used 
in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the 
publicinterest.
    (iv) In addition, the manufacturer shall indicate by means of alabel 
or tag permanently affixed to the engine that the engine iscovered by a 
certificate of conformity issued for the purpose ofassuring achievement 
of emission standards prescribed under section213 of the Act. This label 
or tag shall also contain informationrelating to control of emissions as 
prescribed underSec. 91.113.
    (b) The manufacturer bears all cost obligation a dealer incurs asa 
result of a requirement imposed by paragraph (a) of this section.The 
transfer of any such cost obligation from a manufacturer to adealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a 
statementrespecting the cost or value of emission control devices or 
systems,the manufacturer shall set forth in the statement the cost or 
valueattributed to these devices or systems by the Secretary of 
Labor(through the Bureau of Labor Statistics). The Secretary of Labor, 
andhis or her representatives, has the same access for this purpose 
tothe books, documents, papers, and records of a manufacturer as 
theComptroller General has to those of a recipient of assistance 
forpurposes of section 311 of the Act.
    (d) Any inspection of an engine for purposes of paragraph (a)(1)of 
this section, after its sale to the ultimate purchaser, is to bemade 
only if the owner of such vehicle or engine voluntarily permitssuch 
inspection to be made, except as may be provided by any state orlocal 
inspection program.



        Subpart M_Emission Warranty and Maintenance Instructions



Sec. 91.1201  Applicability.

    The requirements of this subpart M are applicable to all 
enginessubject to the provisions of subpart A of this part 91.



Sec. 91.1202  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 91.1203  Emission warranty, warranty period.

    (a) Warranties imposed by this subpart shall be phased inaccording 
to the following schedule.
    (1) For model years 1998-2000, and for MY 1997 enginefamilies 
certified pursuant to Sec. 91.205, all emissionrelated components shall 
be warranted for a period of one year ofengine use.
    (2) For model years 2001-2003:
    (i) Emission related components shall be warranted for a period 
ofone year of engine use.
    (ii) Specified major emission control components shall bewarranted 
for a period of three years or 200 hours of engine use,whichever occurs 
first.

[[Page 402]]

    (3) For model years 2004 and beyond:
    (i) Emission-related components shall be warranted for a period 
oftwo years or 200 hours of engine use, whichever occurs first.
    (ii) Specified major emission control components shall bewarranted 
for a period of three years or 200 hours of engine use,whichever occurs 
first.
    (b) The manufacturer of each new marine SI engine must warrant tothe 
ultimate purchaser and each subsequent purchaser, that the engineis 
designed, built, and equipped so as to conform at the time of salewith 
applicable regulations under section 213 of the Act, and theengine is 
free from defects in materials and workmanship which causesuch engine to 
fail to conform with applicable regulations for itswarranty period.
    (c) In the case of a marine SI engine part, the manufacturer 
orrebuilder of the part may certify according to Sec. 85.2112ot this 
chapter that use of the part will not result in a failure ofthe engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any marine 
SIengine warranted under this part is responsible for the 
propermaintenance of the engine as stated in the manufacturer's 
writteninstructions. Proper maintenance generally includes replacement 
andservice, at the owner's expense at a service establishment or 
facilityof the owner's choosing, such items as spark plugs, 
points,condensers, and any other part, item, or device related to 
emissioncontrol (but not designed for emission control) under the terms 
of thelast sentence of section 207(a)(3) of the Act, unless such part, 
item,or device is covered by any warranty not mandated by this Act.



Sec. 91.1204  Furnishing of maintenance and use instructions to ultimatepurchaser.

    (a) The manufacturer must furnish or cause to be furnished to 
theultimate purchaser of each new marine SI engine written 
instructionsfor the maintenance and use needed to assure proper 
functioning of theemission control system.
    (b) The manufacturer must provide in boldface type on the firstpage 
of the written maintenance instructions notice that 
maintenance,replacement, or repair of the emission control devices and 
systems maybe performed by any marine SI engine repair establishment 
orindividual.
    (c) The instructions under paragraph (a) of this section will 
notinclude any condition on the ultimate purchaser's using, in 
connectionwith such engine, any component or service (other than a 
component orservice provided without charge under the terms of the 
purchaseagreement) which is identified by brand, trade, or corporate 
name.Such instructions also will not directly or indirectly 
distinguishbetween service performed by the franchised dealers of 
suchmanufacturer or any other service establishments with which 
suchmanufacturer has a commercial relationship and service performed 
byindependent marine engine repair facilities which such manufacturerhas 
no commercial relationship.
    (d) The prohibition of paragraph (c) of this section may be waivedby 
the Administrator if:
    (1) The manufacturer satisfies the Administrator that the enginewill 
function properly only if the component or service so identifiedis used 
in connection with such engine, and
    (2) The Administrator finds that such a waiver is in the 
publicinterest.



         Subpart N_In-Use Credit Program for New Marine Engines



Sec. 91.1301  Applicability.

    Marine SI engines subject to the provisions of subpart A of thispart 
91 are eligible to participate in the in-use credit programdescribed in 
this subpart.



Sec. 91.1302  Definitions.

    The definitions in subpart A of this part apply to this subpart.The 
following definitions shall also apply to this subpart:
    Averaging means the exchange of marine engine in-useemission credits 
among engine families within a given manufacturer'sproduct line.
    Banking means the retention of marine engine in-use emissioncredits 
by the manufacturer generating the emission credits for use infuture 
model

[[Page 403]]

year averaging or trading as permitted by theseregulations.
    Carry-over engine family means an engine family whichundergoes 
certification using carryover test data from previous modelyears. See 
Sec. 91.118(c).
    Emission credits or in-use credits represent the amount ofemission 
reduction or exceedance, for each regulated pollutant, by amarine engine 
family below or above, respectively, the applicablecertification family 
emission limit (FEL) to which the engine familyis certified. Emission 
reductions below the FEL are considered``positive credits,'' while 
emission exceedances above theFEL are considered ``negative or required 
credits.''
    Banked credits refer to positive emission credits based onactual 
applicable production/sales volume as contained in the end ofmodel year 
in-use testing reports submitted to EPA. Some or all ofthese banked 
credits may be revoked if EPA review of the end of modelyear in-use 
testing reports or any subsequent audit action(s) uncoversproblems or 
errors.
    Trading means the exchange of marine SI engine in-useemission 
credits between manufacturers and/or brokers.
    Compliance level for an engine family is determined byaveraging the 
in-use test results from each engine.



Sec. 91.1303  General provisions.

    (a) The in-use credit program for eligible marine engines 
isdescribed in this subpart. Participation in this program is voluntary.
    (b) A marine SI engine family is eligible to participate in thein-
use credit program if it is subject to regulation under subpart Bof this 
part with certain exceptions specified in paragraph (c) ofthis section.
    (c) Marine SI engines may not participate in the in-use 
averaging,banking, and trading program if they are delivered to a 
``pointof first retail sale'' outside of the U.S., as defined inSec. 
91.202.
    (d) Credits generated and used in the marine engine 
certificationaveraging, banking, and trading program pursuant to the 
provisions ofsubpart C of this part are not interchangeable with credits 
generatedand used in the marine engine in-use credit program.
    (e) An engine family with a compliance level, as determined by in-
use testing pursuant to subpart I of this part and paragraph (h) ofthis 
section, below the applicable FEL to which the engine family iscertified 
may generate emission credits for averaging, banking, ortrading in the 
in-use credit program.
    (f) Positive credits generated in a given model year may be usedin 
that model year and/or in any subsequent model year.
    (g) A manufacturer of an engine family with a compliance 
levelexceeding the applicable FEL to which the engine family is 
certified,may, prior to the date of the report required under paragraph 
(j) ofthis section use previously banked credits, purchase credits 
fromanother manufacturer, or perform additional testing pursuant 
toparagraph (i) of this section to address (as calculated elsewhere 
inthis subpart) the associated credit deficit (negative credits or aneed 
for credits).
    (h) A manufacturer may carry-over an in-use credit deficit up toand 
including model year 2003. Beginning with model year 2004, 
allmanufacturers must have a zero or positive credit balance.
    (i) A manufacturer must notify EPA of plans to test additionalengine 
families beyond the maximum 25 percent required in subpart I ofthis part 
for the in-use testing program. Such notice must besubmitted 30 days 
prior to initiation of service accumulation. EPA mayapprove, with 
adequate justification, the use of an existing fleet foradditional 
testing. If the additional testing discovers an enginefamily to be in 
noncompliance with the applicable FEL, the testingmust be treated as if 
it were a failure of the normal in-use testingrequirement of an engine 
family.
    (j) Manufacturers must demonstrate a zero or positive creditbalance 
under the in-use credit program for a particular model yearwithin 90 
days of the end of the in-use testing of that model year'sengine 
families, or at the same time as the final certificationAB&T report 
(required under Sec. 91.210), whichever islater.

[[Page 404]]



Sec. 91.1304  Averaging.

    (a) A manufacturer may use averaging across engine families 
todemonstrate a zero or positive credit balance for a model 
year.Positive credits to be used in averaging may be obtained from 
creditsgenerated by another engine family of the same model year, 
creditsbanked in previous model years, or credits obtained through 
trading.
    (b) Beginning in model year 2004, credits used to demonstrate azero 
or positive credit balance must be used at a rate of 1.1 to 1.



Sec. 91.1305  Banking.

    (a) A manufacturer of a marine SI engine family with an in-
usecompliance level below the applicable FEL to which the engine 
familyis certified for a given model year may bank positive in-use 
creditsfor that model year for use in in-use averaging and trading.
    (b) A manufacturer may consider credits banked 30 days after 
thesubmission of the report required by Sec. 91.1309(a). Duringthe 30 
day period EPA will work with the manufacturer to correct anyerror in 
calculating banked credits, if necessary.



Sec. 91.1306  Trading.

    (a) A marine engine manufacturer may exchange positive in-
useemission credits with other marine engine manufacturers 
throughtrading.
    (b) In-use credits for trading can be obtained from credits 
bankedfor model years prior to the model year of the engine family 
requiringin-use credits.
    (c) Traded in-use credits can be used for averaging, banking, 
orfurther trading transactions.
    (d) Unless otherwise approved by EPA, a manufacturer thatgenerates 
positive in-use credits must wait 30 days after it has bothcompleted in-
use testing for the model year for which the credits weregenerated and 
submitted the report required bySec. 91.1309(a) before it may transfer 
credits to anothermanufacturer or broker.
    (e) In the event of a negative credit balance resulting from 
atransaction, both the buyer and the seller are liable, except in 
casesinvolving fraud. Engine families participating in a negative trade 
maybe subject to recall under subpart I of this part.



Sec. 91.1307  Credit calculation.

    For each participating engine family, emission credits (positiveor 
negative) are to be calculated according to the following equationand 
rounded, in accordance with ASTM E29-93a, to the nearestgram. ASTM E29-
93a has been incorporated by reference. SeeSec. 91.6. Consistent units 
are to be used throughout theequation. The following equation is used to 
determine the creditstatus for an engine family whether generating 
positive or negativein-use emission credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.053

Where:

S(t)=cumulative fraction survived at time t;
[mu]life=average useful life in years, specific tothe power 
rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.055

Power = the average power of an engine family in kW (salesweighted). The 
power of each configuration is the rated output in

[[Page 405]]

kilowatts as determined by SAE J1228. This procedure has 
beenincorporated by reference. See Sec. 91.6.
t = time in model years
max useful life = maximum useful life specific to the power ratingand 
the application; max useful life = 2[mu]life
sales = the number of eligible sales tracked to the point of firstretail 
sale in the U.S. for the given engine family during the modelyear.
FEL = the family emission limit for the engine family in grams 
perkilowatt hour.
CL = compliance level of the in-use testing in g/kW-hr.
[mu]use = mean use in hours per year. For outboardengines, 
[mu]use=34.8 hrs /yr. For personal 
watercraft,[mu]use=77.3 hrs/yr;
AF = adjustment factor for the number of tests conducted

 
 
------------------------------------------------------------------------
No. eng. tested.........................   2*, 4       6       8      10
Adjustment factor.......................      .5     .75      .9       1
* Small volume manufacturer



Sec. 91.1308  Maintenance of records.

    (a) Any manufacturer that is participating in the in-use 
creditprogram set forth in this subpart shall establish, maintain, 
andretain the records required by Sec. 91.209 with respect toits 
participation in the in-use credit program.
    (b) EPA may void ab initio a certificate of conformity foran engine 
family for which the manufacturer fails to retain therecords required 
under this section or to provide such information tothe Administrator 
upon request.



Sec. 91.1309  Reporting requirements.

    (a) Any manufacturer who participates in the in-use credit programis 
required to submit an end of the model year in-use testing reporteither 
within 90 days of the end of the model year in-use testing of agiven 
model year's engine families, or at the same time as the 
finalcertification AB&T report (required under Sec. 91.210),whichever 
is later. The end of the model year in-use testing reportmust contain 
the required information and show the calculated creditsfrom all the in-
use testing conducted by the manufacturer for a givenmodel year.
    (b) Reports shall be submitted to: Manager, Engine 
CompliancePrograms Group 6403-J, U.S. Environmental Protection 
Agency,1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) A manufacturer that fails to submit a timely report asrequired 
in paragraph (a) of this section will be considered to nothave 
participated in the in-use credit program.
    (d) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end of model year report previously submitted to 
EPAunder this subpart, or an engine family in-use testing 
reportsubmitted to EPA under subpart I, the manufacturer's credits 
andcredit calculations will be recalculated. Erroneous positive 
creditswill be void. Erroneous negative credits may be adjusted by EPA. 
Anupdate of previously submitted ``point of first retailsale'' 
information is not considered an error and no increase inthe number of 
credits will be allowed unless an actual error occurredin the 
calculation of credits due to an error in the ``point offirst retail 
sale'' information from the time of the originalend of model year 
report.



Sec. 91.1310  Notice of opportunity for hearing.

    Any voiding of an engine family's certificate of conformity 
underSec. 91.1308(b) of this subpart will occur only after 
themanufacturer concerned has been offered an opportunity for a 
hearingconducted in accordance with Sec. Sec. 91.512,91.513, 91.514 
and 91.515.



PART 92_CONTROL OF AIR POLLUTION FROM LOCOMOTIVESAND LOCOMOTIVE ENGINES--Table of Contents




Subpart A_General Provisions for Emission Regulations forLocomotives and 
                           Locomotive Engines

Sec.
92.1 Applicability.
92.2 Definitions.
92.3 Abbreviations.
92.4 Treatment of confidential information.
92.5 Reference materials.
92.6 Regulatory structure.
92.7 General standards.
92.8 Emission standards.
92.9 Compliance with emission standards.
92.10 Warranty period.
92.11 Compliance with emission standards in extraordinarycircumstances.
92.12 Interim provisions.

[[Page 406]]

                        Subpart B_Test Procedures

92.101 Applicability.
92.102 Definitions and abbreviations.
92.103 Test procedures; overview.
92.104 Locomotive and engine testing; overview.
92.105 General equipment specifications.
92.106 Equipment for loading the engine.
92.107 Fuel flow measurement.
92.108 Intake and cooling air measurements.
92.109 Analyzer specifications.
92.110 Weighing chamber and micro-balance.
92.111 Smoke measurement system.
92.112 Analytical gases.
92.113 Fuel specifications.
92.114 Exhaust gas and particulate sampling and analyticalsystem.
92.115 Calibrations; frequency and overview.
92.116 Engine output measurement system calibrations.
92.117 Gas meter or flow instrumentation calibration,particulate 
          measurement.
92.118 Analyzer checks and calibrations.
92.119 Hydrocarbon analyzer calibration.
92.120 NDIR analyzer calibration and checks.
92.121 Oxides of nitrogen analyzer calibration and check.
92.122 Smoke meter calibration.
92.123 Test procedure; general requirements.
92.124 Test sequence; general requirements.
92.125 Pre-test procedures and preconditioning.
92.126 Test run.
92.127 Emission measurement accuracy.
92.128 Particulate handling and weighing.
92.129 Exhaust sample analysis.
92.130 Determination of steady-state concentrations.
92.131 Smoke, data analysis.
92.132 Calculations.
92.133 Required information.

                   Subpart C_Certification Provisions

92.201 Applicability.
92.202 Definitions.
92.203 Application for certification.
92.204 Designation of engine families.
92.205 Prohibited controls, adjustable parameters.
92.206 Required information.
92.207 Special test procedures.
92.208 Certification.
92.209 Certification with multiple manufacturers orremanufacturers.
92.210 Amending the application and certificate ofconformity.
92.211 Emission-related maintenance instructions forpurchasers.
92.212 Labeling.
92.213 Submission of locomotive and engine identificationnumbers.
92.214 Production locomotives and engines.
92.215 Maintenance of records; submittal of information;right of entry.
92.216 Hearing procedures.

    Subpart D_Certification Averaging, Banking, and TradingProvisions

92.301 Applicability.
92.302 Definitions.
92.303 General provisions.
92.304 Compliance requirements.
92.305 Credit generation and use calculation.
92.306 Certification.
92.307 Labeling.
92.308 Maintenance of records.
92.309 Reports.
92.310 Notice of opportunity for hearing.

   Subpart E_Emission-Related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program

92.401 Applicability.
92.402 Definitions.
92.403 Emission defect information report.
92.404 Voluntary emissions recall reporting.
92.405 Alternative report formats.
92.406 Reports filing: record retention.
92.407 Responsibility under other legal provisionspreserved.
92.408 Disclaimer of production warranty applicability.

  Subpart F_Manufacturer and Remanufacturer Production LineTesting and 
                             Audit Programs

92.501 Applicability.
92.502 Definitions.
92.503 General requirements.
92.504 Right of entry and access.
92.505 Sample selection for testing.
92.506 Test procedures.
92.507 Sequence of testing.
92.508 Calculation and reporting of test results.
92.509 Maintenance of records; submittal of information.
92.510 Compliance with criteria for production line testing.
92.511 Remanufactured locomotives: installation auditrequirements.
92.512 Suspension and revocation of certificates ofconformity.
92.513 Request for public hearing.
92.514 Administrative procedures for public hearing.
92.515 Hearing procedures.
92.516 Appeal of hearing decision.
92.517 Treatment of confidential information.

                    Subpart G_In-Use Testing Program

92.601 Applicability.
92.602 Definitions.
92.603 General provisions.
92.604 In-use test procedure.

[[Page 407]]

92.605 General testing requirements.
92.606 Maintenance, procurement and testing of in-uselocomotives.
92.607 In-use test program reporting requirements.

                      Subpart H_Recall Regulations

92.701 Applicability.
92.702 Definitions.
92.703 Voluntary emissions recall.
92.704 Notice to manufacturer or remanufacturer ofnonconformity; 
          submission of remedial plan.
92.705 Remedial plan.
92.706 Approval of plan: Implementation.
92.707 Notification to locomotive or locomotive engineowners.
92.708 Records and reports.
92.709 Public hearings.

Subpart I_Importation of Nonconforming Locomotives andLocomotive Engines

92.801 Applicability.
92.802 Definitions.
92.803 Admission.
92.804 Exemptions.
92.805 Prohibited acts; penalties.
92.806 Importation of partially complete engines.

              Subpart J_Exclusion and Exemption Provisions

92.901 Purpose and applicability.
92.902 Definitions.
92.903 Exclusions.
92.904 Exemptions.
92.905 Testing exemption.
92.906 Manufacturer-owned, remanufacturer-owned exemptionand display 
          exemption.
92.907 Non-locomotive-specific engine exemption.
92.908 National security exemption.
92.909 Export exemptions.
92.910 Granting of exemptions.
92.911 Submission of exemption requests.
92.912 Staged-assembly exemption.

Subpart K_Requirements Applicable to Owners and Operatorsof Locomotives 
                         and Locomotive Engines

92.1001 Applicability.
92.1002 Definitions.
92.1003 In-use testing program.
92.1004 Maintenance and repair.
92.1005 In-use locomotives.
92.1006 Refueling requirements.
92.1007 Remanufacturing requirements.

       Subpart L_General Enforcement Provisions and ProhibitedActs

92.1101 Applicability.
92.1102 Definitions.
92.1103 Prohibited acts.
92.1104 General enforcement provisions.
92.1105 Injunction proceedings for prohibited acts.
92.1106 Penalties.
92.1107 Warranty provisions.
92.1108 In-use compliance provisions.

Appendix I to Part 92--Emission-Related Locomotiveand Engine Parameters 
          and Specifications
Appendix II to Part 92--Interpretive Ruling forSec. 92.705--Remedial 
          Plans
Appendix III to Part 92--Smoke Standards for Non-normalized Measurements
Appendix IV to Part 92--Guidelines for DeterminingEquivalency Between 
          Emission Measurement Systems

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

    Source: 63 FR 18998, Apr. 16, 1998, unless otherwisenoted.



Subpart A_General Provisions for Emission Regulations forLocomotives and 
                           Locomotive Engines



Sec. 92.1  Applicability.

    (a) Except as noted in paragraphs (b) and (d) of this section, 
theprovisions of this part apply to manufacturers, 
remanufacturers,owners and operators of:
    (1) Locomotives and locomotive engines manufactured on or 
afterJanuary 1, 2000; and
    (2) Locomotives and locomotive engines manufactured on or 
afterJanuary 1, 1973 and remanufactured on or after January 1, 2000; and
    (3) Locomotives and locomotive engines manufactured prior toJanuary 
1, 1973, and upgraded on or after January 1, 2000.
    (b) The requirements and prohibitions of this part do not applywith 
respect to:
    (1) Steam locomotives, as defined in Sec. 92.2;
    (2) Locomotives powered solely by an external source ofelectricity;
    (3) Locomotive engines which provide only hotel power (see 40 
CFRparts 89 and 1039 to determine if such engines are subject to 
EPAemission requirements); or
    (4) Nonroad vehicles excluded from the definition of locomotive 
inSec. 92.2, and the engines used in such nonroad vehicles(see 40 CFR 
parts 86, 89, and

[[Page 408]]

1039 to determine if such vehiclesor engines are subject to EPA emission 
requirements).
    (c) For cases in which there are multiple entities meeting 
thedefinition of manufacturer or remanufacturer, seeSec. 92.209 for 
guidance.
    (d) The provisions of subpart L of this part apply to all persons.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40452, July13, 2005]

    Effective Date Note: At 73 FR 37194, June 30, 2008,Sec. 92.1 was 
amended by revising paragraph (a) introductorytext and adding paragraph 
(e), effective July 7, 2008. For theconvenience of the user, the added 
and revised text is set forth asfollows:



Sec. 92.1  Applicability.

    (a) Except as noted in paragraphs (b), (d) and (e) of thissection, 
the provisions of this part apply to manufacturers,remanufacturers, 
owners and operators of:

                                * * * * *

    (e) The provisions of this part do not apply for locomotives thatare 
subject to the emissions standards of 40 CFR part 1033.



Sec. 92.2  Definitions.

    (a) The definitions of this section apply to this subpart. Theyalso 
apply to all subparts of this part, except where noted otherwise.
    (b) As used in this part, all terms not defined in this sectionshall 
have the meaning given them in the Act:
    Act means the Clean Air Act as amended (42 U.S.C. 7401 etseq.).
    Administrator means the Administrator of the EnvironmentalProtection 
Agency or his/her authorized representative.
    Aftertreatment system or aftertreatment component oraftertreatment 
technology means any system or component ortechnology mounted downstream 
of the exhaust valve or exhaust portwhose design function is to reduce 
exhaust emissions.
    Alcohol fuel means a fuel consisting primarily (more than 50percent 
by weight) of one or more alcohols: e.g., methyl alcohol,ethyl alcohol.
    Alternator/generator efficiency means the ratio of theelectrical 
power output from the alternator/generator to themechanical power input 
to the alternator/generator at the operatingpoint.
    Alternator/generator input horsepower means the mechanicalhorsepower 
input to the main alternator or generator of a locomotive.For the 
purpose of calculating brake horsepower, alternator/generatorinput 
horsepower does not include any power used to circulate enginecoolant, 
circulate engine lubricant, or to supply fuel to the engine.
    Applicable standard means a standard to which a locomotiveor 
locomotive engine is subject; or, where a locomotive or locomotiveengine 
is certified another standard or FEL, applicable standard meansthe other 
standard or FEL to which the locomotive or locomotive engineis 
certified, as allowed by Sec. 92.8. This definition doesnot apply to 
subpart D of this part.
    Auxiliary emission control device (AECD) means any elementof design 
which senses temperature, locomotive speed, engine RPM,atmospheric 
pressure, manifold pressure or vacuum, or any otherparameter for the 
purpose of activating, modulating, delaying, ordeactivating the 
operation of any part of the emission control system(including, but not 
limited to injection timing); or any other featurethat causes in-use 
emissions to be higher than those measured undertest conditions, except 
as allowed by this part.
    Auxiliary engine means a locomotive engine that provideshotel power, 
but does not provide power to propel the locomotive.
    Auxiliary power means the power provided by the mainpropulsion 
engine to operate accessories such as cooling fans.
    Averaging for locomotives and locomotive engines means theexchange 
of emission credits among engine families within a givenmanufacturer's, 
or remanufacturer's, product line.
    Banking means the retention of emission credits by a creditholder 
for use in future calendar year averaging or trading aspermitted by the 
regulations in this part.
    Brake horsepower means the sum of the alternator/generatorinput 
horsepower and the mechanical accessory horsepower, excludingany power 
used to circulate engine coolant, circulate enginelubricant, or to 
supply fuel to the engine.

[[Page 409]]

    Calibration means the set of specifications, includingtolerances, 
specific to a particular design, version, or applicationof a component, 
or components, or assembly capable of functionallydescribing its 
operation over its working range. This definition doesapply to Subpart B 
of this part.
    Class I freight railroad means a Class I railroad thatprimarily 
transports freight rather than passengers.
    Class I railroad means a railroad that has been classifiedas a Class 
I railroad by the Surface Transportation Board.
    Class II railroad means a railroad that has been classifiedas a 
Class II railroad by the Surface Transportation Board.
    Class III railroad means a railroad that has been classifiedas a 
Class III railroad by the Surface Transportation Board.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, injector size, engine calibration, andother parameters 
as designated by the Administrator.
    Crankcase emissions means emissions to the atmosphere fromany 
portion of the crankcase ventilation or engine lubricationsystems.
    Defeat device means an AECD or other control feature thatreduces the 
effectiveness of the emission control system underconditions which may 
reasonably be expected to be encountered innormal locomotive operation 
and use, unless the AECD or other controlfeature has been identified by 
the certifying manufacturer orremanufacturer in the application for 
certification, and:
    (1) Such conditions are substantially represented by the portionof 
the federal test procedure during which the applicable emissionrates are 
measured;
    (2) The need for the AECD is justified in terms of protecting 
thelocomotive or locomotive engine against damage or accident; or
    (3) The AECD does not go beyond the requirements of enginestarting.
    Deterioration factor means the difference between exhaustemissions 
at the end of useful life and exhaust emissions at the lowmileage test 
point expressed as either: the ratio of exhaust emissionsat the end of 
useful life to exhaust emissions at the low mileage testpoint (for 
multiplicative deterioration factors); or the differencebetween exhaust 
emissions at the end of useful life exhaust emissionsat the low mileage 
test point (for additive deterioration factors).
    Diesel fuel means any fuel suitable for use in dieselengines, and 
which is commonly or commercially known or sold as dieselfuel.
    Emission control system means those devices, systems orelements of 
design which control or reduce the emission of substancesfrom an engine. 
This includes, but is not limited to, mechanical andelectronic 
components and controls, and computer software.
    Emission credits represent the amount of emission reductionor 
exceedance, by a locomotive engine family, below or above theemission 
standard, respectively. Emission reductions below thestandard are 
considered as ``positive credits,'' whileemission exceedances above the 
standard are considered as``negative credits.'' In addition, 
``projectedcredits'' refer to emission credits based on the 
projectedapplicable production/sales volume of the engine 
family.``Reserved credits'' are emission credits generated withina 
calendar year waiting to be reported to EPA at the end of thecalendar 
year. ``Actual credits'' refer to emissioncredits based on actual 
applicable production/sales volume ascontained in the end-of-year 
reports submitted to EPA.
    Emission-data engine means an engine which is tested forpurposes of 
emission certification or production line testing.
    Emission-data locomotive means a locomotive which is testedfor 
purposes of emission certification or production line testing.
    Emission-related defect means a defect in design, materials,or 
workmanship in a device, system, or assembly described in theapproved 
Application for certification which affects any parameter 
orspecification enumerated in Appendix I of this part.
    Emission-related maintenance means that maintenance 
whichsubstantially affects emissions or which is likely to

[[Page 410]]

affect thedeterioration of the locomotive or engine with respect to 
emissions,as described in an approved Application for certification.
    Engine family means a group of locomotive or locomotiveengine 
configurations which are expected to have similar 
emissioncharacteristics throughout the useful lives of the locomotives 
andengines (see Sec. 92.204), and which are (or were) covered(or 
requested to be covered) by a specific certificate of conformity.
    Engine used in a locomotive means an engine incorporatedinto a 
locomotive or intended for incorporation into a locomotive.
    Engineering analysis means a summary of scientific and/orengineering 
principles and facts that support a conclusion made by amanufacturer or 
remanufacturer, with respect to compliance with theprovisions of this 
part.
    EPA Enforcement Officer means any officer or employee of 
theEnvironmental Protection Agency so designated in writing by 
theAdministrator or his/her designee.
    Ethanol means a fuel that contains at least 50 percentethanol (ethyl 
alcohol, (C2H5OH)) by volume.
    Exhaust emissions means substances (i.e., gases andparticles) 
emitted to the atmosphere from any opening downstream fromthe exhaust 
port or exhaust valve of a locomotive engine.
    Family Emission Limit means an emission level declared bythe 
certifying manufacturer or remanufacturer to serve in lieu of 
anotherwise applicable emission standard for certification andcompliance 
purposes in the averaging, banking and trading program.FELs are 
expressed to the same number of decimal places as theapplicable emission 
standard.
    Freshly manufactured locomotive means a locomotive which ispowered 
by a freshly manufactured engine, and which contains fewerthan 25 
percent previously used parts (weighted by the dollar value ofthe 
parts).
    Freshly manufactured locomotive engine means a newlocomotive engine 
which has not been remanufactured.
    Fuel system means the combination of fuel tank(s), fuelpump(s), fuel 
lines and filters, pressure regulator(s), and fuelinjection components 
(or pressure regulator(s) and carburetor(s) iffuel injection is not 
employed), fuel system vents, and any othercomponent involved in the 
delivery of fuel to the engine.
    Gaseous fuel means a fuel which is a gas at standardtemperature and 
pressure. This includes both natural gas and liquefiedpetroleum gas.
    Green engine factor means a factor that is applied toemission 
measurements from a locomotive or locomotive engine that hashad little 
or no service accumulation. The green engine factor adjustsemission 
measurements to be equivalent to emission measurements from alocomotive 
or locomotive engine that has had approximately 300 hoursof use.
    High-altitude means relating to an altitude greater than4000 feet 
(1220 meters) and less than 7000 feet (2135 meters), orequivalent 
observed barometric test conditions of 25.7 to 22.7 inch Hg(88.5 to 78.1 
kilopascals).
    Hotel power means the power provided by an engine on alocomotive to 
operate equipment on passenger cars of a train; e.g.,heating and air 
conditioning, lights, etc.
    Idle speed means that speed, expressed as the number ofrevolutions 
of the crankshaft per unit of time (e.g., rpm), at whichthe engine is 
set to operate when not under load for purposes ofpropelling the 
locomotive.
    Importer means an entity or person who imports locomotivesor 
locomotive engines from a foreign country into the United 
States(including the Commonwealth of Puerto Rico, the Virgin Islands, 
Guam,American Samoa, and the Northern Mariana Islands).
    Inspect and qualify means to determine that a previouslyused 
component or system meets all applicable criteria listed for 
thecomponent or system in a certificate of conformity for 
remanufacturing(e.g., determine that the component or system is 
functionallyequivalent to one that has not been used previously).
    Installer means an individual or entity which 
assemblesremanufactured locomotives or locomotive engines.
    Liquefied petroleum gas means the commercial productmarketed as 
liquefied petroleum gas or propane.

[[Page 411]]

    Locomotive means a self-propelled piece of on-trackequipment 
designed for moving or propelling cars that are designed tocarry 
freight, passengers or other equipment, but which itself is notdesigned 
or intended to carry freight, passengers (other than thoseoperating the 
locomotive) or other equipment. The following otherequipment are not 
locomotives (see 40 CFR parts 86 and 89 for thisequipment):
    (1) Equipment which is designed for operation both on highways 
andrails are not locomotives.
    (2) Specialized railroad equipment for maintenance, 
construction,post accident recovery of equipment, and repairs; and other 
similarequipment, are not locomotives.
    (3) Vehicles propelled by engines with total rated horsepower ofless 
than 750 kW (1006 hp) are not locomotives (see 40 CFR parts 86and 89 for 
this equipment), unless the owner (including manufacturers)chooses to 
have the equipment certified under the requirements of thispart. Where 
equipment is certified as a locomotive pursuant to thisparagraph (3), it 
shall be subject to the requirements of this partfor the remainder of 
its service life. For locomotives propelled bytwo or more engines, the 
total rated horsepower is the sum of therated horsepowers of each 
engine.
    Locomotive engine means an engine incorporated into alocomotive or 
intended for incorporation into a locomotive.
    Low hour engine means an engine during the interval betweenthe time 
that normal assembly operations and adjustments are completedand the 
time that 300 additional operating hours have been accumulated(including 
hours accumulated during emission testing if performed).
    Low idle speed means a speed which is less than normal idlespeed, 
expressed as the number of revolutions of the crankshaft perunit of 
time, at which an engine can be set when not under load forpurposes of 
propelling the locomotive.
    Low mileage locomotive means a locomotive during theinterval between 
the time that normal assembly operations andadjustments are completed 
and the time that either 10,000 miles oflocomotive operation or 300 
additional operating hours have beenaccumulated (including emission 
testing if performed).
    Malfunction means a condition in which the operation of acomponent 
in a locomotive or locomotive engine occurs in a mannerother than that 
specified by the certifying manufacturer orremanufacturer (e.g., as 
specified in the application forcertification); or the operation of the 
locomotive or locomotiveengine in that condition.
    Manufacturer means an individual or entity engaged in 
themanufacturing or assembling of freshly manufactured locomotives 
orfreshly manufactured locomotive engines; or the importing 
oflocomotives or locomotive engines originally manufactured on or 
afterJanuary 1, 1973 and not remanufactured. (SeeSec. Sec. 92.1(c) and 
92.209 for applicability of thisterm.)
    Maximum rated horsepower means the maximum brake horsepoweroutput of 
an engine.
    Mechanical accessory horsepower means the sum of 
mechanicalhorsepower generated by an engine to supply accessories. 
Mechanicalaccessory horsepower does not include power supplied to the 
mainalternator or generator, power used to circulate engine coolant 
orengine lubricant, or power used to supply fuel to the engine.
    Methanol means a fuel that contains at least 50 percentmethanol 
(methyl alcohol, (CH3OH)) by volume.
    Method of aspiration means the method whereby air for fuelcombustion 
enters the engine (e.g., natural or turbocharged).
    Model year means a calendar year; except where theAdministrator 
determines a different production period which includesJanuary 1 of such 
calendar year.
    Natural gas means the commercial product marketed as naturalgas 
whose primary constituent is methane.
    New locomotive or new locomotive engine means:
    (1)(i) A locomotive or locomotive engine the equitable or legaltitle 
to which has never been transferred to an ultimate purchaser; or
    (ii) A locomotive or locomotive engine which has beenremanufactured,

[[Page 412]]

but has not been placed back into service.
    (2) Where the equitable or legal title to a locomotive orlocomotive 
engine is not transferred prior to its being placed intoservice, the 
locomotive or locomotive engine ceases to be new when itis placed into 
service.
    (3) With respect to imported locomotives or locomotive engines,the 
term ``new locomotive'' or ``new locomotiveengine'' means a locomotive 
or locomotive engine that is notcovered by a certificate of conformity 
under this part at the time ofimportation, and that was manufactured or 
remanufactured after theeffective date of the emission standards in this 
part which isapplicable to such locomotive or engine (or which would be 
applicableto such locomotive or engine had it been manufactured 
orremanufactured for importation into the United States).
    (4) Notwithstanding paragraphs (1) through (3) of this 
definition,locomotives and locomotive engines which were originally 
manufacturedbefore January 1, 1973 and which have not been upgraded are 
not new.
    (5) Notwithstanding paragraphs (1) through (3) of this 
definition,locomotives and locomotive engines which are owned by a small 
railroadand which have never been manufactured or remanufactured into 
acertified configuration are not new.
    Nonconforming locomotive or nonconforming locomotiveengine means a 
locomotive or locomotive engine which is not coveredby a certificate of 
conformity prior to importation or being offeredfor importation (or for 
which such coverage has not been adequatelydemonstrated to EPA); or a 
locomotive or locomotive engine which wasoriginally covered by a 
certificate of conformity, but which is not ina certified configuration, 
or otherwise does not comply with theconditions of that certificate of 
conformity.
    (Note: Domestic locomotives and locomotive engines which arenot 
covered by a certificate of conformity prior to their introductioninto 
U.S. commerce are considered to be noncomplying locomotives 
andlocomotive engines.)
    Non-locomotive-specific engine means an engine that is soldfor and 
used in non-locomotive applications more than for 
locomotiveapplications.
    Normal idle means relating to the idle throttle-notchposition for 
locomotives that have one throttle-notch position, or thehighest the 
idle throttle-notch position for locomotives that have twothrottle-notch 
positions.
    Opacity means the fraction of a beam of light, expressed inpercent, 
which fails to penetrate a plume of smoke as measured andcalculated 
under the provisions of subpart B of this part.
    Original manufacture means the event of freshlymanufacturing a 
locomotive or locomotive engine. The date of originalmanufacture is the 
date of final assembly; except as provided inSec. 92.11. Where a 
locomotive or locomotive engine ismanufactured under Sec. 92.11, the 
date of originalmanufacture is the date on which the final assembly of 
locomotive orlocomotive engine was originally scheduled.
    Original remanufacture means the first remanufacturing of 
alocomotive or locomotive engine at which the locomotive or 
locomotiveengines is subject to the emission standards of this part.
    Oxides of nitrogen means nitric oxide and nitrogen dioxide.Oxides of 
nitrogen are expressed quantitatively as if the nitric oxidewere in the 
form of nitrogen dioxide (oxides of nitrogen are assumedto have a 
molecular weight equivalent to nitrogen dioxide).
    Passenger locomotive means a locomotive designed andconstructed for 
the primary purpose of propelling passenger trains,and providing power 
to the passenger cars of the train for suchfunctions as heating, 
lighting and air conditioning.
    Petroleum fuel means a fuel primarily derived from crude oil(e.g., 
gasoline or diesel fuel).
    Power assembly means the components of an engine in whichcombustion 
of fuel occurs, and consists of the cylinder, piston andpiston rings, 
valves and ports for admission of charge air anddischarge of exhaust 
gases, fuel injection components and controls,cylinder head and 
associated components.
    Primary fuel means that type of fuel (e.g., diesel fuel)that is 
consumed in the greatest quantity (mass basis) when thelocomotive or 
locomotive engine is operated in use.

[[Page 413]]

    Produce means to manufacture or remanufacture. Where acertificate 
holder does not actually assemble the locomotives orlocomotive engines 
that it manufactures or remanufactures, producemeans to allow other 
entities to assemble locomotives or locomotiveengines under the 
certificate holder's certificate.
    Railroad means a commercial entity that operates locomotivesto 
transport passengers or freight.
    Rated horsepower means the maximum horsepower output of alocomotive 
engine in use.
    Remanufacture means:
    (1)(i) To replace, or inspect and qualify, each and every 
powerassembly of a locomotive or locomotive engine, whether during a 
singlemaintenance event or cumulatively within a five year period; or
    (ii) To upgrade a locomotive or locomotive engine; or
    (iii) To convert a locomotive or locomotive engine to enable it 
tooperate using a fuel other than it was originally manufactured to 
use;or
    (iv) To install a remanufactured engine or a freshly 
manufacturedengine into a previously used locomotive.
    (2) Remanufacture also means the act of remanufacturing.
    Remanufacture system or remanufacturing system meansall components 
(or specifications for components) and instructionsnecessary to 
remanufacture a locomotive or locomotive engine inaccordance with 
applicable requirements of this part.
    Remanufactured locomotive means either a locomotive which ispowered 
by a remanufactured locomotive engine, or a repoweredlocomotive.
    Remanufactured locomotive engine means a locomotive enginewhich has 
been remanufactured.
    Remanufacturer means an individual or entity that is engagedin the 
manufacture or assembly of remanufactured locomotives orlocomotive 
engines, (including: Entities that design or produce theemission-related 
parts used in remanufacturing; entities that installparts in an existing 
locomotive or locomotive engine to remanufactureit; and entities that 
own or operate the locomotive or locomotiveengine and provide 
specifications as to how an engine is to beremanufactured (i.e., 
specifying who will perform the work, when thework is to be performed, 
what parts are to be used, or how tocalibrate the adjustable parameters 
of the engine)); or an importer ofremanufactured locomotives or 
locomotive engines. (SeeSec. Sec. 92.1(c) and 92.209 for applicability 
of thisterm.)
    Repower means replacement of the engine in a previously 
usedlocomotive with a freshly manufactured locomotive engine. Replacing 
alocomotive engine with a freshly manufactured locomotive engine in 
alocomotive that has a refurbished or reconditioned chassis such 
thatless than 25 percent of the parts of the locomotive were 
previouslyused (as weighted by dollar value) is not repowering.
    Repowered locomotive means a locomotive that has beenrepowered with 
a freshly manufactured engine.
    Service life means the total life of a locomotive orlocomotive 
engine. Service life begins when the locomotive orlocomotive engine is 
originally manufactured and continues until thelocomotive or locomotive 
engine is permanently removed from service.
    Small railroad means a railroad that is classified by theSmall 
Business Administration as a small business.
    Small remanufacturer means a remanufacturer that isclassified by the 
Small Business Administration as a small business.
    Smoke means the matter in the engine exhaust which obscuresthe 
transmission of light.
    Specified adjustable range means the range of allowablesettings for 
an adjustable component specified by a certificate ofconformity.
    Specified by a certificate of conformity or specified ina 
certificate of conformity means stated or otherwise specified ina 
certificate of conformity or an approved application forcertification.
    Steam locomotive means a historic locomotive propelled by asteam 
engine.
    Switch locomotive means a locomotive designed or used solelyfor the 
primary purpose of propelling railroad cars a short distance,and that is 
powered by an engine with a maximum horsepower rating of2300 hp or less.

[[Page 414]]

    Test locomotive or locomotive engine means alocomotive or locomotive 
engine in a test sample.
    Test sample means the collection of locomotives orlocomotive engines 
selected from the population of an engine familyfor emission testing or 
auditing.
    Throttle means the component, or components, which eitherdirectly or 
indirectly controls the fuel flow to the engine.
    Throttle notch means a discrete throttle position for alocomotive 
with a limited number of throttle positions.
    Throttle notch horsepower means the brake horsepower outputof an 
engine corresponding to each throttle notch position, includingdynamic-
brake settings.
    Throttle notch speed means the speed of the engine,expressed as the 
number of revolutions of the crankshaft per unit oftime (e.g., rpm), 
corresponding to each throttle notch position,including dynamic-brake, 
and hotel power settings.
    Tier 0 means relating to emission standards applicable tolocomotives 
originally manufactured before January 1, 2002; orrelating to such 
locomotives.
    1 means relating to emission standards applicable tolocomotives 
originally manufactured on or after January 1, 2002 andbefore January 1, 
2005; or relating to such locomotives.
    Tier 2 means relating to emission standards applicable tolocomotives 
originally manufactured on or after January 1, 2005; orrelating to such 
locomotives.
    Total Hydrocarbon Equivalent means the sum of the carbonmass 
contributions of non-oxygenated hydrocarbons, alcohols andaldehydes, or 
other organic compounds that are measured separately ascontained in a 
gas sample, expressed as gasoline-fueled vehiclehydrocarbons. The 
hydrogen-to-carbon ratio of the equivalenthydrocarbon is 1.85:1. Total 
Hydrocarbon Equivalent is abbreviatedTHCE.
    Trading means the exchange of locomotive or locomotiveengine 
emission credits between credit holders.
    United States means the States, the District of Columbia,the 
Commonwealth of Puerto Rico, the Commonwealth of the NorthernMariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Upgrade means to modify a locomotive or locomotive enginethat was 
originally manufactured prior to January 1, 1973 (or alocomotive or 
locomotive engine that was originally manufactured on orafter January 1, 
1973, and that is not subject to the emissionstandards of this part), 
such that it is intended to comply with theTier 0 standards. Upgrading 
is a type of remanufacturing.
    Useful life means the period during which the locomotiveengine is 
designed to properly function in terms of reliability andfuel 
consumption, without being remanufactured, specified as workoutput or 
miles. It is the period during which a new locomotive orlocomotive 
engine is required to comply with all applicable emissionstandards.
    Volatile liquid fuel means any liquid fuel other than dieselor 
biodiesel.
    Voluntary emission recall means a repair, adjustment, ormodification 
program voluntarily initiated and conducted by amanufacturer or 
remanufacturer to remedy any emission-related defectfor which 
notification of locomotive or locomotive engine owners hasbeen provided.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]

    Effective Date Note: At 73 FR 37194, June 30, 2008,Sec. 92.2 was 
amended by revising the definition for``Freshly manufactured 
locomotive'', effective July 7,2008. For the convenience of the user, 
the revised text is set forthas follows:



Sec. 92.2  Definitions.

                                * * * * *

    Freshly manufactured locomotive means a locomotive which ispowered 
by a freshly manufactured engine, and which contains fewerthan 25 
percent previously used parts (weighted by the dollar value ofthe 
parts). See 40 CFR 1033.640 for information about how to calculatethis.

                                * * * * *



Sec. 92.3  Abbreviations.

    The abbreviations of this section apply to all subparts of thispart 
and have the following meanings:


[[Page 415]]


ANSI--American National Standards Institute
API--American Petroleum Institute
ASTM--American Society for Testing and Materials
BHP--Brake horsepower
BSCO--Brake specific carbon monoxide
BSHC--Brake specific hydrocarbons
BSNOX--Brake specific oxides of nitrogen
 [deg]C--Celsius
cfh--cubic feet per hour
cfm--cubic feet per minute
CFV--Critical flow venturi
CL--Chemiluminescence
CO--Carbon monoxide
CO2--Carbon dioxide
cu in--cubic inch(es)
CVS--Constant volume sampler
EP--End point
EPA--Environmental Protection Agency
 [deg]F--Fahrenheit
FEL--Family emission limit
FID--Flame ionization detector
ft--foot or feet
g--gram(s)
gal--U.S. gallon
GC--Gas Chromatograph
h--hour(s)
H2O--water
HC--hydrocarbon
HFID--Heated flame ionization detector
Hg--Mercury
hp--horsepower
IBP--Initial boiling point
in--inch(es)
K--Kelvin
kg--kilogram(s)
km--kilometer(s)
kPa--kilopascal(s)
lb--pound(s)
LPG--Liquified Petroleum Gas
m--meter(s)
max--maximum
mg--milligram(s)
mi--mile(s)
min--minute
ml--milliliter(s)
mm--millimeter
mph--miles per hour
mv--millivolt(s)
N2--nitrogen
NDIR--Nondispersive infrared
NMHC--Non-methane hydrocarbons
NO--nitric oxide
NO2--nitrogen dioxide
NOX--oxides of nitrogen
No.--number
O2--oxygen
pct--percent
PM--particulate matter
ppm--parts per million by volume
ppmC--parts per million, carbon
psi--pounds per square inch
psig--pounds per square inch gauge
[deg]R--Rankin
rpm--revolutions per minute
s--second(s)
SAE--Society of Automotive Engineers
SI--International system of units (i.e., metric)
THCE--Total hydrocarbon equivalent
U.S.--United States
V--volt(s)
vs--versus
W--watt(s)
wt--weight



Sec. 92.4  Treatment of confidential information.

    (a) Any manufacturer or remanufacturer may assert that some or allof 
the information submitted pursuant to this part is entitled 
toconfidential treatment as provided by 40 CFR part 2, subpart B.
    (b) Any claim of confidentiality must accompany the information 
atthe time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part 
isconfidential, a person or manufacturer or remanufacturer must 
indicateclearly the items of information claimed confidential by 
marking,circling, bracketing, stamping, or otherwise specifying 
theconfidential information. Furthermore, EPA requests, but does 
notrequire, that the submitter also provide a second copy of 
itssubmittal from which all confidential information has been deleted. 
Ifa need arises to publicly release nonconfidential information, EPAwill 
assume that the submitter has accurately deleted the 
confidentialinformation from this second copy.
    (d) If a claim is made that some or all of the informationsubmitted 
pursuant to this part is entitled to confidential treatment,the 
information covered by that confidentiality claim will bedisclosed by 
EPA only to the extent and by means of the procedures setforth in 40 CFR 
part 2, subpart B.
    (e) Information provided without a claim of confidentiality at 
thetime of submission may be made available to the public by EPA 
withoutfurther notice to the submitter, in accordance with 40 CFR 
2.204(c)(2)(i)(A).



Sec. 92.5  Reference materials.

    (a) The documents in paragraph (b) of this section have 
beenincorporated by reference. The incorporation by reference was 
approvedby the Director of the Federal Register in accordance

[[Page 416]]

with 5U.S.C. 552(a) and 1 CFR part 51. Copies may be inspected at U.S. 
EPA,OAR, 401 M St., SW., Washington, DC 20460, or at the National 
Archivesand Records Administration (NARA). For information on the 
availabilityof this material at NARA, call 202-741-6030, or go to:http:/
/www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (b) The following paragraphs and tables set forth the materialthat 
has been incorporated by reference in this part:
    (1) ASTM material. The following table sets forth materialfrom the 
American Society for Testing and Materials that has beenincorporated by 
reference. The first column lists the number and nameof the material. 
The second column lists the section(s) of the part,other than this 
section, in which the matter is referenced. The secondcolumn is 
presented for information only and may not be all inclusive.More recent 
versions of these standards may be used with advanceapproval of the 
Administrator. Copies of these materials may beobtained from American 
Society for Testing and Materials, 1916 RaceSt., Philadelphia, PA 19103. 
The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part92 reference
------------------------------------------------------------------------
ASTM D 86-95, Standard Test Method for       Sec.  92.113
 Distillation ofPetroleum Products.
ASTM D 93-94, Standard Test Methods for      Sec.  92.113
 Flash-Point byPensky-Martens Closed Cup
 Tester.
ASTM D 287-92, Standard Test Method for API  Sec.  92.113
 Gravity ofCrude Petroleum and Petroleum
 Products (Hydrometer Method).
ASTM D 445-94, Standard Test Method for      Sec.  92.113
 Kinematic Viscosityof Transparent and
 Opaque Liquids (the Calculation of
 DynamicViscosity).
ASTM D 613-95, Standard Test Method for      Sec.  92.113
 Cetane Number ofDiesel Fuel Oil.
ASTM D 976-91, Standard Test Method for      Sec.  92.113
 Calculated CetaneIndex of Distillate Fuels.
ASTM D 1319-95, Standard Test Method for     Sec.  92.113
 Hydrocarbon Typesin Liquid Petroleum
 Products by Fluorescent
 IndicatorAdsorption.
ASTM D 1945-91, Standard Test Method for     Sec.  92.113
 Analysis ofNatural Gas by Gas
 Chromatography.
ASTM D 2622-94, Standard Test Method for     Sec.  92.113
 Sulfur inPetroleum Products by X-Ray
 Spectrometry.
ASTM D 5186-91, Standard Test Method for     Sec.  92.113
 Determination ofAromatic Content of Diesel
 Fuels by Supercritical FluidChromatography.
ASTM E 29-93a, Standard Practice for Using   Sec. Sec.  92.9, 92.305,
 SignificantDigits in Test Data to            92.509
 Determine Conformance withSpecifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth materialfrom the 
Society of Automotive Engineers that has been incorporated byreference. 
The first column lists the number and name of the material.The second 
column lists the section(s) of the part, other than thissection, in 
which the matter is referenced. The second column ispresented for 
information only and may not be all inclusive. Copies ofthese materials 
may be obtained from Society of Automotive EngineersInternational, 400 
Commonwealth Dr., Warrendale, PA 15096-0001.The table follows:

------------------------------------------------------------------------
          Document number and name              40 CFR part92 reference
------------------------------------------------------------------------
SAE Paper 770141, Optimization of a Flame     Sec.  92.119
 Ionization Detector forDetermination of
 Hydrocarbon in Diluted Automotive Exhausts,
 by GlennD. Reschke.
SAE Recommended Practice J244, Measurement    Sec.  92.108
 of Intake Air orExhaust Gas Flow of Diesel
 Engines.
------------------------------------------------------------------------

    (3) ANSI material. The following table sets forth materialfrom the 
American National Standards Institute that has beenincorporated by 
reference. The first column lists the number and nameof the material. 
The second column lists the section(s) of the part,other than this 
section, in which the matter is referenced. The secondcolumn is 
presented for information only and may not be all inclusive.More recent 
versions of these standards may be used with advanceapproval of the 
Administrator. Copies of these materials may beobtained from American 
National Standards Institute, 11 West 42nd St.,13th Floor, New York, NY 
10036. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part92 reference
------------------------------------------------------------------------
ANSI B109.1-1992, Diaphragm Type Gas         Sec.  92.117
 DisplacmentMeters.
------------------------------------------------------------------------



Sec. 92.6  Regulatory structure.

    This section provides an overview of the regulatory structure ofthis 
part.

[[Page 417]]

    (a) The regulations of this part 92 are intended to controlemissions 
from in-use locomotives. Because locomotive chassis andlocomotive 
engines are sometimes manufactured or remanufacturedseparately, the 
regulations in this part include some provisions thatapply specifically 
to locomotive engines. However, the use of the term``locomotive engine'' 
in the regulations in this part doesnot limit in any manner the 
liability of any manufacturer orremanufacturer for the emission 
performance of a locomotive powered byan engine that it has manufactured 
or remanufactured.
    (b) The locomotives and locomotive engines for which theregulations 
of this part (i.e., 40 CFR part 92) apply are specified bySec. 92.1, 
and by the definitions of Sec. 92.2.The point at which a locomotive or 
locomotive engine becomes subjectto the regulations of this part is 
determined by the definition of``new locomotive or new locomotive 
engine'' inSec. 92.2. Subpart J of this part contains 
provisionsexempting certain locomotives or locomotive engines from 
theregulations in this part under special circumstances.
    (c) To comply with the requirements of this part, a manufactureror 
remanufacturer must demonstrate to EPA that the locomotive orlocomotive 
engine meets the applicable standards ofSec. Sec. 92.7 and 92.8, and 
all other requirements ofthis part. The requirements of this 
certification process aredescribed in subparts C and D of this part.
    (d) Subpart B of this part specifies procedures and equipment tobe 
used for conducting emission tests for the purpose of theregulations of 
this part.
    (e) Subparts E, F, G, and H of this part specify requirements 
formanufacturers and remanufacturers after certification; that is 
duringproduction and use of the locomotives and locomotive engines.
    (f) Subpart I of this part contains requirements applicable to 
theimportation of locomotives and locomotive engines.
    (g) Subpart K of this part contains requirements applicable to 
theowners and operators of locomotives and locomotive engines.
    (h) Subpart L of this part describes prohibited acts and 
containsother enforcement provisions relating to locomotives and 
locomotiveengines.
    (i) Unless specified otherwise, the provisions of this part applyto 
all locomotives and locomotive engines subject to the emissionstandards 
of this part.



Sec. 92.7  General standards.

    (a) Locomotives and locomotive engines may not be equipped 
withdefeat devices.
    (b) New locomotives fueled with a volatile fuel shall be designedto 
minimize evaporative emissions during normal operation, includingperiods 
when the engine is shut down.
    (c)(1) Locomotive hardware for refueling locomotives fueled with 
avolatile fuel shall be designed so as to minimize the escape of 
fuelvapors.
    (2) Hoses used to refuel gaseous-fueled locomotives shall not 
bedesigned to be bled or vented to the atmosphere under normal 
operatingconditions.
    (3) No valves or pressure relief vents shall be used on gaseous-
fueled locomotives except as emergency safety devices, and these 
shallnot operate at normal system operating flows and pressures.
    (d) All new locomotives and new locomotive engines subject to anyof 
the standards imposed by this subpart shall, prior to sale,introduction 
into service, or return to service, be designed toinclude features that 
compensate for changes in altitude to ensurethat the locomotives or 
locomotive engines will comply with theapplicable emission standards 
when operated at any altitude less than7000 feet above sea level.



Sec. 92.8  Emission standards.

    (a) Exhaust standards. Exhaust emissions from locomotivesand 
locomotive engines, when measured in accordance with theprovisions of 
Subpart B of this part, shall comply with both theapplicable line-haul 
duty-cycle standards, and the applicable switchduty-cycle standards of 
paragraph (a)(1) (and/or the standards ofparagraphs (a)(3) and (a)(4) of 
this section, as applicable) of thissection, and the smoke standards of 
paragraph (a)(2) of this section.

[[Page 418]]

Emissions that do not exceed the standards comply with thestandards.
    (1) Gaseous and particulate standards. Gaseous andparticulate 
emission standards are expressed as gram per brakehorsepower hour (g/
bhp-hr). Non-methane hydrocarbon standards apply tolocomotives and 
locomotive engines fueled with natural gas, and anycombination of 
natural gas and other fuels where natural gas is theprimary fuel; total 
hydrocarbon equivalent standards apply tolocomotives and locomotive 
engines fueled with an alcohol, and anycombination of alcohol and other 
fuels where alcohol is the primaryfuel. Total hydrocarbon standards 
apply to all other locomotives andlocomotive engines; that is, those not 
fueled by natural gas oralcohol. The line-haul duty-cycle standards and 
switch duty-cyclestandards apply to the respective cycle-weighted 
emission rates ascalculated in subpart B of this part.
    (i) Tier 0. The following locomotives (and the engines usedin the 
following locomotives) are subject to the Tier 0 emissionstandards 
listed in Table A8-1 of this section: Locomotivesmanufactured on, or 
after, January 1, 1973, and before January 1,2002; and upgraded 
locomotives manufactured prior to January 1, 1973.The standards apply 
when such a locomotive or locomotive engine ismanufactured, 
remanufactured, or imported on or after January 1, 2002;except where the 
locomotive was previously certified to one or moreFELs under subpart D 
of this part instead of the applicable standards,in which case, the 
applicable standards are replaced at eachsubsequent remanufacture by the 
FELs specified by the previouscertificate. Example: a locomotive that is 
certified to aNOX FEL of 8.0 g/bhp-hr must be recertified to 
aNOX FEL of 8.0 g/bhp-hr at each subsequent 
remanufacture,except as allowed by paragraph (a)(4)(iii) of this 
section.
    (ii) Tier 1. Locomotives and engines used in locomotivesmanufactured 
on, or after, January 1, 2002, and before January 1, 2005are subject to 
the Tier 1 standards listed in Table A8-2 ofthis section. The standards 
apply when such a locomotive or locomotiveengine is manufactured or 
imported, and each time it isremanufactured; except where the locomotive 
was previously certifiedto one or more FELs under subpart D of this part 
instead of theapplicable standard, in which case, the standards are 
replaced at eachsubsequent remanufacture by the FELs specified by the 
previouscertificate.
    (iii) Tier 2. Locomotives and engines used in 
locomotivesmanufactured on, or after, January 1, 2005 are subject to the 
Tier 2standards listed in Table A8-3 of this section. The standardsapply 
when such a locomotive or locomotive engine is manufactured orimported, 
and each time it is remanufactured except where thelocomotive was 
previously certified to one or more FELs under subpartD of this part 
instead of the applicable standard, in which case, thestandards are 
replaced at each subsequent remanufacture by the FELsspecified by the 
previous certificate.
    (2) Smoke standards. The smoke opacity standards listed inTable A8-4 
of this section apply, as specified in the table, tolocomotives and 
locomotive engines subject to the Tier 0, Tier 1, orTier 2 standards. 
Smoke emissions, when measured in accordance withthe provisions of 
Subpart B of this part, shall not exceed thestandards of Table A8-4 of 
this section.
    (3) Alternate standards. In lieu of the CO and PM standardsspecified 
in paragraph (a)(1) of this section, manufacturers andremanufacturers 
may elect to comply with the alternate CO and PMstandards listed in 
Table A8-5 of this section. Manufacturersand remanufacturers electing to 
comply with these alternate standardsmust comply with both the CO and PM 
standards listed in TableA8-5 of this section.
    (4) Averaging, banking and trading. (i) In lieu of theNOX 
and/or PM standards specified in paragraph (a)(1) ofthis section, 
manufacturers and remanufacturers may elect to includeengine families in 
the averaging, banking, and trading program, theprovisions of which are 
specified in subpart D of this part. Themanufacturer or remanufacturer 
must set family emission limits (FEL)for the applicable duty-cycle. This 
FEL serves as the standard forthat family.
    (ii) When a locomotive is certified to an FEL other than 
theapplicable standard, it must be recertified to that

[[Page 419]]

same FEL atall subsequent remanufactures, except as specified otherwise 
inparagraph (a)(4)(iii) of this section.
    (iii) After a locomotive has been certified to any given FEL 
otherthan the applicable standard, it may be recertified to a different 
FELat a subsequent remanufacture, as allowed by subpart D of this 
part.For subsequent remanufactures (i.e. those remanufactures that 
occurafter the recertification to a different FEL), the locomotive must 
berecertified to the FEL(s) and standards that were applicable to 
thelocomotive during its previous useful life, except where 
specifiedotherwise by subpart D of this part.
    (5) Tables. The tables referenced in paragraphs (a) (1)through (3) 
of this section follow:

                      Table A8-1--Tier 0 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                   Line-haul    Switch
                                                   \1\ cycle     cycle
                                                   standard    standard
------------------------------------------------------------------------
NOX.............................................         9.5        14.0
PM..............................................        0.60        0.72
CO..............................................         5.0         8.0
THC.............................................        1.00        2.10
NMHC............................................        1.00        2.10
THCE............................................        1.00        2.10
------------------------------------------------------------------------
\1\ Line-haul standards do not apply to Tier 0 switchlocomotives.


                      Table A8-2--Tier 1 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                Line-haul
                                                  cycle        Switch
                                                standard   cyclestandard
------------------------------------------------------------------------
NOX..........................................         7.4          11.0
PM...........................................        0.45          0.54
CO...........................................         2.2           2.5
THC..........................................        0.55          1.20
NMHC.........................................        0.55          1.20
THCE.........................................        0.55          1.20
------------------------------------------------------------------------


                      Table A8-3--Tier 2 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                Line-haul
                                                  cycle        Switch
                                                standard   cyclestandard
------------------------------------------------------------------------
NOX..........................................         5.5           8.1
PM...........................................        0.20          0.24
CO...........................................         1.5           2.4
THC..........................................        0.30          0.60
NMHC.........................................        0.30          0.60
THCE.........................................        0.30          0.60
------------------------------------------------------------------------


               Table A8-4--Smoke Standards forLocomotives
                            [Percent Opacity]
------------------------------------------------------------------------
                                             Steady-     30-      3-sec
                                              state    secpeak    peak
------------------------------------------------------------------------
Tier 0....................................        30        40        50
Tier 1....................................        25        40        50
Tier 2....................................        20        40        50
------------------------------------------------------------------------


                Table A8-5--Alternate CO and PMStandards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                Line-haul   Switch cycle
                                                  cycle    -------------
                                             --------------
                                                CO     PM     CO     PM
------------------------------------------------------------------------
Tier 0......................................   10.0   0.30   12.0   0.36
Tier 1......................................   10.0   0.22   12.0   0.27
Tier 2......................................   10.0   0.10   12.0   0.12
------------------------------------------------------------------------

    (b) No crankcase emissions shall be discharged directly into 
theambient atmosphere from any new locomotive or new locomotive 
engine,except as allowed by paragraph (1) of this paragraph (b).
    (1) Discharge of crankcase emissions into the engine exhaustcomplies 
with this prohibition, provided crankcase emissions aremeasured and 
included with exhaust emissions. Other discharge ofcrankcase emissions 
complies with this prohibition, provided crankcaseemissions are measured 
in all certification, production-line, and in-use tests and the masses 
are added mathematically to the exhaustemissions.
    (2) Compliance with this standard is required throughout theentire 
service life of the locomotive or locomotive engine.
    (c) Notch standards. (1) Exhaust emissions from locomotivesand 
locomotive engines shall not exceed the notch standards set forthin 
paragraph (c)(2) of this section, except as allowed in paragraph(c)(3) 
of this section, when measured using any test procedures underany test 
conditions.
    (2) Notch standards for each pollutant for each notch arecalculated 
from the certified notch emission rate as follows:

Notch standard=(Ex)x(1.1+(1-ELHx/std))

Where:

Ex=The deteriorated brake-specific emission rate 
(forpollutant x) for the notch (i.e., the brake-specific emission 
ratecalculated

[[Page 420]]

under subpart B of this part, multplied by thedeterioration factor in 
the application for certification expressed asa multiplicative 
deterioration factor); where x is NOX. HC(or NMHC or THCE, as 
applicable), CO or PM.
ELHx=The deteriorated line-haul duty-cycle weightedbrake-
specific emission rate for pollutant x, as reported in theapplication 
for certification.
std=The applicable line-haul duty-cycle standard, or the certifiedline-
haul duty-cycle FEL for locomotives or locomotive enginesparticipating 
in the averaging, banking and trading program for NOx orPM.

    (3) Where exhaust emissions exceed the notch standards set forthin 
paragraph (c)(2) of this section, the locomotive or locomotiveengine is 
considered to be in compliance with such standards only if:
    (i) The same emission controls are applied during the testconditions 
causing the noncompliance as were applied duringcertification test 
conditions (and to the same degree); or
    (ii) The exceeding emissions result from a design feature that 
wasdescribed (including its effect on emissions) in the 
approvedapplication for certification, and is necessary for safety or 
isotherwise allowed by this part.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]



Sec. 92.9  Compliance with emission standards.

    (a) The general standards in Sec. 92.7 and the emissionstandards in 
Sec. 92.8 apply to the emissions from newlocomotives and new locomotive 
engines for their useful life. Theuseful life is specified as MW-hrs and 
years, and ends when either ofthe values (MW-hrs or years) is exceeded.
    (1) The minimum useful life in terms of MW-hrs is equal to 
theproduct of the rated horsepower multiplied by 7.50. The minimum 
usefullife in terms of years is ten years. For locomotives or 
locomotiveengines originally manufactured before January 1, 2000 and 
notequipped with MW-hr meters, the minimum useful life is equal 
to750,000 miles or ten years, whichever is reached first.
    (2) The certifying manufacturer or remanufacturer shall specify 
alonger useful life if the locomotive or locomotive engine is designedto 
last longer than the applicable minimum useful life. Amanufacturer's or 
remanufacturer's recommended time to remanufacturewhich is longer than 
the minimum useful life is one indicator of alonger design life.
    (3) Manufacturers and remanufacturers of non-locomotive-
specificengines (as defined in Sec. 92.2) may petition theAdministrator 
prior to certification to allow a shorter useful lifefor an engine 
family containing only non-locomotive-specific engines.This petition 
must include the full rationale behind the requesttogether with any 
other supporting evidence. Based on this or otherinformation, the 
Administrator may allow a shorter useful life.
    (4) Remanufacturers of locomotive or locomotive engineconfigurations 
that have been previously certified under paragraph (a)(3) of this 
section to a useful life that is shorter than the valuespecified in 
paragraph (a)(1) of this section may certify to that sameuseful life 
value without request.
    (b) Certification. Certification is the process by 
whichmanufacturers and remanufacturers apply for and obtain certificates 
ofconformity from EPA that allow the manufacturer or remanufacturer 
tointroduce into commerce new locomotives and/or new locomotive 
enginesfor sale or use in the U.S.
    (1)(i) Compliance with the applicable emission standards by anengine 
family must be demonstrated by the certifying manufacturer 
orremanufacturer before a certificate of conformity may be issued 
underSec. 92.208.
    (A) Manufacturers shall demonstrate compliance using emissiondata, 
measured using the procedures specified in subpart B of thispart, from a 
low mileage locomotive, or a development engine (that isequivalent in 
design to the locomotive engines being certified), oranother low hour 
engine.
    (B) Remanufacturers shall demonstrate compliance using emissiondata, 
measured using the procedures specified in subpart B of thispart, from a 
low mileage remanufactured locomotive, or a developmentengine (that is 
equivalent in design to the locomotive engines beingcertified), or 
another low hour remanufactured engine

[[Page 421]]

that wasremanufactured in the manner specified in the application 
forcertification.
    (ii) The emission values to compare with the standards shall bethe 
emission values of a low mileage locomotive, or developmentengine, or 
low hour locomotive engine, adjusted by the deteriorationfactors 
developed in accordance with the provisions of paragraph (b)(2) of this 
section. Before any emission value is compared with thestandard, it 
shall be rounded, in accordance with ASTM E 29-93a(incorporated by 
reference at Sec. 92.5), to the same numberof significant figures as 
contained in the applicable standard.
    (2) Exhaust emission deterioration factors shall be determined bythe 
certifying manufacturer or remanufacturer for each engine family.The 
manufacturer's or remanufacturer's determination is subject to 
therequirements of paragraph (b)(2)(iv) of this section. 
Thedeterioration factor relates emissions from low mileage or low 
hourdata to emissions at the end of useful life. If certification data 
isobtained from a development engine, and the emissions performance 
ofthat engine is significantly different from a typical low hour 
engine,then the deterioration factors may be adjusted for the purpose 
ofcertification.
    (i) A separate exhaust emission deterioration factor shall 
beestablished, as required, for compliance with applicable 
emissionstandards for HC, THCE, NMHC, CO, NOX. particulate 
andsmoke for each engine family.
    (ii)(A) For locomotives or locomotive engines not 
utilizingaftertreatment technology (e.g., catalyst). For HC, THCE, NMHC, 
CO,NOX. and PM, additive deterioration factors shall be 
used;that is, a deterioration factor that when added to the low 
mileageemission rate equals the emission rate at the end of useful 
life.However, if the deterioration factor supplied by the manufacturer 
orremanufacturer is less than zero, it shall be zero for the purposes 
ofthis section.
    (B) For locomotives or locomotive engines utilizing 
aftertreatmenttechnology (e.g., catalyst). For HC, THCE, NMHC, CO, 
NOX.and PM, Multiplicative deterioration factors shall be 
used; that isdeterioration factors that when multiplied by the low 
mileage emissionrate equal the emission rate at the end of useful life. 
However, ifthe deterioration factor supplied by the manufacturer 
orremanufacturer is less than one, it shall be one for the purposes 
ofthis paragraph (b).
    (C) For all locomotives and locomotive engines. For smoke,additive 
deterioration factors shall be used. However, if thedeterioration factor 
supplied by the manufacturer or remanufacturer isless than zero, it 
shall be zero for the purposes of this paragraph(b).
    (iii) In the case of a multiplicative exhaust emissiondeterioration 
factor, the factor shall be rounded to three places tothe right of the 
decimal point in accordance with ASTM E 29-93a(incorporated by reference 
at Sec. 92.5). In the case of anadditive exhaust emission deterioration 
factor, the factor shall beestablished to a minimum of two places to the 
right of the decimal inaccordance with ASTM E 29-93a (incorporated by 
reference atSec. 92.5).
    (iv) Every deterioration factor must be, in the 
Administrator'sjudgement, consistent with emissions increases observed 
in-use basedon emission testing of similar locomotives or locomotive 
engines.Deterioration factors that predict emission increases over the 
usefullife of a locomotive or locomotive engine that are significantly 
lessthan the emission increases over the useful life observed from in-
usetesting of similar locomotives or locomotive engines shall not 
beused.



Sec. 92.10  Warranty period.

    Warranties imposed by Sec. 92.1107 shall apply for atleast the 
first third of the full useful life of the locomotive orlocomotive 
engine, or for the same period during which themanufacturer or 
remanufacturer provides any other mechanical warranty,whichever is 
longer. A copy of the manufacturer's or remanufacturer'swarranty shall 
be submitted with the application for certification.



Sec. 92.11  Compliance with emission standards in extraordinary circumstances.

    The provisions of this section are intended to address problemsthat 
could

[[Page 422]]

occur near the date on which more stringent emissionstandards become 
effective, such as the transition from the Tier 1standards to the Tier 2 
standards on January 1, 2005.
    (a) In appropriate extreme and unusual circumstances which 
areclearly outside the control of the manufacturer and which could 
nothave been avoided by the exercise of prudence, diligence, and 
duecare, the Administrator may permit a manufacturer, for a brief 
period,to introduce into commerce locomotives which do not comply with 
theapplicable emission standards if:
    (1) The locomotives cannot reasonably be manufactured in such 
amanner that they would be able to comply with the applicablestandards;
    (2) The manufacture of the locomotives was substantially 
completedprior to the applicability date of the standards from which 
themanufacturer seeks relief;
    (3) Manufacture of the locomotives was previously scheduled to 
becompleted at such a point in time that locomotives would have 
beenincluded in the previous model year, such that they would have 
beensubject to less stringent standards, and that such schedule 
wasfeasible under normal conditions;
    (4) The manufacturer demonstrates that the locomotives comply 
withthe less stringent standards that applied to the previous model 
year'sproduction described in paragraph (a)(3) of this section, 
asprescribed by subpart C of this part (i.e., that the locomotives 
areidentical to locomotives certified in the previous model year);
    (5) The manufacturer exercised prudent planning and was not ableto 
avoid the violation and has taken all reasonable steps to minimizethe 
extent of the nonconformity; and
    (6) The manufacturer receives approval from EPA prior tointroducing 
the locomotives into commerce.
    (b) Any manufacturer seeking relief under this section shallnotify 
EPA as soon as it becomes aware of the extreme or unusualcircumstances.
    (c)(1) Locomotives for which the Administrator grants relief 
underthis section shall be included in the engine family for which 
theywere originally intended to be included.
    (2) Where the locomotives are to be included in an engine familythat 
was certified to an FEL above the applicable standard, themanufacturer 
shall reserve credits to cover the locomotives covered bythis section, 
and shall include the required information for theselocomotives in the 
end-of-year report required by subpart D of thispart.
    (d) In granting relief under this section, the Administrator mayalso 
set other conditions as he/she determines to be appropriate, suchas 
requiring payment of fees to negate an economic gain that suchrelief 
would otherwise provide to the manufacturer.



Sec. 92.12  Interim provisions.

    Notwithstanding other provisions of this part, the 
followingprovisions apply as specified to locomotives and locomotive 
enginessubject to the provisions of this part:
    (a) Tier 0 standards. In addition to the requirements ofSec. 
92.8(a)(1)(i), the following new locomotives and newlocomotive engines 
are subject to the Tier 0 emission standards ofSec. 92.8. The 
requirements of this paragraph do not applyto passenger locomotives. The 
requirements of this paragraph (a)provide manufacturers of freshly 
manufactured locomotives two optionsfor compliance. The first option is 
to comply with the requirements ofparagraphs (a) (1) and (2) of this 
section, which has the effect ofrequiring compliance with Tier 0 
standards on average beginning onJanuary 1, 2001 for all freshly 
manufactured and remanufacturedlocomotives originally manufactured on or 
after January 1, 1994. Thesecond option requires compliance with the 
requirements of paragraph(a)(3) of this section that the manufacturer 
make a remanufacturingsystem available at a reasonable cost for its 
primary model for the1994 through 1997 production period prior to 
January 1, 2000, and toapply the same emission controls to its new 
production of similarlocomotives. Manufacturers complying with paragraph 
(a)(3) of thissection would be allowed to manufacture and remanufacture 
otherlocomotives without a certificate of conformity, prior to January

[[Page 423]]

1, 2002, except as required by paragraph (a)(2)(ii) of thissection. 
Manufacturers may comply with paragraph (a)(3) of thissection through 
compliance with the provisions of paragraph (a)(5) ofthis section.
    (1) Freshly manufactured locomotives. Except as provided inparagraph 
(a)(3) of this section, all freshly manufactured locomotivesmanufactured 
on or after January 1, 2001 must comply with the emissionstandards 
listed in Table A8-1 of Sec. 92.8 and allother applicable requirements 
of this part.
    (2) Remanufactured locomotives. The following locomotives(and 
engines used in the following locomotives) must comply with theemission 
standards listed in Table A8-1 of Sec. 92.8and all other applicable 
requirements of this part:
    (i) Locomotives originally manufactured on or after January 1,1994, 
that are remanufactured on or after January 1, 2001; and
    (ii) Locomotives originally manufactured on or after January 1,1990 
for which a remanufacturing system has been certified to Tier 0standards 
and is available for use at reasonable cost.
    (3) New model exemption. (i) Freshly manufactured locomotivemodels 
not introduced for widespread production prior to January 1,1998 are 
exempt from the requirements of paragraph (a)(1) of thissection provided 
the manufacturer of the locomotive:
    (A) Has obtained a certificate of conformity and made availablefor 
use at reasonable cost before January 1, 2000, a remanufacturingsystem 
for its primary locomotive model (including its primary enginemodel) 
originally manufactured between January 1, 1994 and January 1,1998; and
    (B) Complies with the emission standards listed in TableA8-1 of 
Sec. 92.8 and all applicable requirements ofthis part for all freshly 
manufactured locomotives manufactured on orafter January 1, 2000 that 
are similar to the primary model describedin paragraph (a)(3)(i)(A) of 
this section.
    (ii) New locomotives and locomotive engines that are manufacturedand 
remanufactured by a manufacturer that complies with therequirements of 
paragraphs (a)(3)(i) (A) and (B) of this section, andthat are not 
similar to the locomotive models identified in paragraphs(a)(3)(i) (A) 
and (B) of this section are exempt from the requirementsof paragraphs 
(a)(1) and (a)(2)(i) of this section.
    (4) Make available at a reasonable cost means to make a 
certifiedremanufacturing system available for use where:
    (i) The total cost to the owner and user of the locomotive(including 
initial hardware, increased fuel consumption, and increasedmaintenance 
costs) during the useful life of the locomotive is lessthan $220,000; 
and
    (ii) The initial hardware costs are reasonably related to 
thetechnology included in the remanufacturing system and are less 
than$50,000 for 2-stroke locomotives and 4-stroke locomotives 
equippedwith split cooling systems, or $125,000 for 4-stroke locomotives 
notequipped with split cooling systems; and
    (iii) The system will not increase fuel consumption by more than 
3percent; and
    (iv) The remanufactured locomotive will have reliabilitythroughout 
its useful life that is similar to the reliability thelocomotive would 
have had if it had been remanufactured without thecertified 
remanufacture system.
    (5)(i) Instead of the provisions of paragraph (a)(3) of thissection, 
a manufacturer may comply with the emissions standards listedin Table 
A8-1 of Sec. 92.8 and all other applicablerequirements of this part 
with respect to any combination oflocomotive models that are 
manufactured or remanufactured on or afterJanuary 1, 2000, provided that 
the manufacturer has demonstrated tothe satisfaction of the 
Administrator that such locomotives willproduce greater emissions 
reductions than would otherwise occurthrough compliance with paragraph 
(a)(3) of this section.
    (ii) New locomotives and locomotive engines that are manufacturedand 
remanufactured by a manufacturer that complies with therequirements of 
paragraph (a)(5)(i) of this section, and that are notsimilar to the 
locomotive models identified in paragraph (a)(5)(i) ofthis section, are 
exempt from the requirements of paragraphs (a)(1)and (a)(2)(i) of this 
section.

[[Page 424]]

    (b) Production line and in-use testing. (1) Therequirements of 
subpart F of this part (i.e., production line testing)do not apply prior 
to January 1, 2002.
    (2) The requirements of subpart F of this part (i.e., productionline 
testing) do not apply to small remanufacturers prior to January1, 2007.
    (3) The requirements of subpart G of this part (i.e., in-usetesting) 
only apply for locomotives and locomotive engines that becomenew on or 
after January 1, 2002.
    (4) For locomotives and locomotive engines that are covered by 
asmall business certificate of conformity, the requirements of subpartG 
of this part (i.e., in-use testing) only apply for locomotives 
andlocomotive engines that become new on or after January 1, 2007.
    (c) Small business certificates of conformity. (1) Prior toJanuary 
1, 2007, small remanufacturers (as defined inSec. 92.2) may use a 
modified version of the federal testprocedures of subpart B of this part 
to obtain certificates ofconformity. Such certificates are valid only 
for production thatoccurs prior to January 1, 2007. Specifically, the 
followingmodifications are allowed:
    (i) Measurement of HC, CO, and PM may be omitted;
    (ii) Dynamometers are not required to meet the specifications 
ofsubpart B of this part, provided their design and use is 
consistentwith good engineering practice;
    (iii) Other modifications that are necessary because of 
excessivecosts or technical infeasibility may be approved by the 
Administratorprior to the start of testing.
    (2)(i) Small remanufacturers may use test procedures other thanthose 
specified in subpart B of this part or in paragraph (c)(1) ofthis 
section to obtain certificates of conformity, provided that thetest 
procedures are consistent with good engineering practice, and 
areapproved by the Administrator prior to the start of testing. 
Suchcertificates are valid only for production that occurs prior 
toJanuary 1, 2007.
    (ii) The total number of locomotives and locomotive engines thatmay 
be remanufactured under a certificate of conformity issued basedon the 
testing described in paragraph (c)(2)(i) of this section shallbe subject 
to the following annual limits for each individualremanufacturer: No 
more than 300 units in 2003, no more than 200 unitsin 2004, no more than 
100 units in 2005, no more than 50 units in2006. These sales limits 
apply to the combined number of locomotivesand locomotive engines 
remanufactured within the calendar year thatare covered by an individual 
remanufacturer's certificates issuedunder paragraph (c)(2)(i) of this 
section.
    (3) Upon request, and prior to January 1, 2007, the Administratormay 
modify other certification requirements, as appropriate, for 
smallremanufacturers.
    (4) Remanufacturers certifying under this paragraph (c) shallprovide 
along with their application for certification a briefengineering 
analysis describing the emission control technology to beincorporated in 
the remanufactured locomotive or locomotive engine,and demonstrating 
that such controls will result in compliance withthe applicable 
standards.
    (d) Early banking of emission credits. (1) Consistent withthe 
provisions of subpart D of this part, NOx and PM emission creditsmay be 
generated from Tier 0 locomotives and locomotive engines priorto the 
applicable effective compliance date of the Tier 0 standard(i.e., the 
effective compliance date in Sec. 92.8(a)(1)(i)or the effective 
compliance dates of paragraph (a) of this section, asapplicable), 
relative to baseline emission rates.
    (2)(i) Credits generated under this paragraph (d) that are grantedor 
transferred to the owner or primary operator of the locomotives 
orlocomotive engines generating credits may be used without restriction.
    (ii) Credits generated under this paragraph (d) that are notgranted 
or transferred to the owner or primary operator of thelocomotives or 
locomotive engines generating credits may not be usedfor compliance with 
the Tier 0 standards for 2002 or later modelyears.
    (3)(i) Prior to January 1, 2000, the provisions of this paragraph(d) 
apply to all locomotives and locomotive engines.

[[Page 425]]

    (ii) During the period January 1, 2000 through December 31,2001, the 
provisions of this paragraph (d) apply only to enginefamilies that 
include only locomotives and/or locomotive enginesoriginally 
manufactured prior to January 1, 1990.
    (iii) The provisions of this paragraph (d) other than theprovisions 
of paragraph (d)(2) of this section do not apply to anylocomotives and 
locomotive engines manufactured or remanufactured onor after January 1, 
2002.
    (4)(i) NOX credits generated under this paragraph 
(d)shall be calculated as specified in Sec. 92.305, except thatthe 
applicable standard shall be replaced by:
    (A) 10.5 g/bhp-hr for the line-haul cycle standards, and 14.0g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emissionrate 
for the configuration with the lowest NOX emissionrate in the 
applicable engine family that is approved in advance bythe 
Administrator.
    (ii) PM credits generated under this paragraph (d) shall 
becalculated as specified in Sec. 92.305, except that theapplicable 
standard shall be replaced by:
    (A) 0.20 g/bhp-hr for the line-haul cycle standards, and 0.24g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emissionrate 
for the configuration with the lowest NOX emissionrate in the 
applicable engine family that is approved in advance bythe 
Administrator.
    (iii) The proration factor for all credits generated under 
thisparagraph (d) shall be 0.143.
    (5) Locomotives and locomotive engines generating credits underthis 
paragraph (d) must meet all applicable requirements of this part.
    (e) Particulate notch standards. For model year 2006 andearlier 
locomotives, the particulate notch standard shall becalculated as:

Notch standard=(EX)x(1.2+(1-ELHx/std)).

    (f) Passenger locomotives. Passenger locomotives 
originallymanufactured before January 1, 2002 are exempt from the 
requirementsand prohibitions of this part for model years through 2006. 
Newpassenger locomotives and locomotive engines produced on or 
afterJanuary 1, 2007 shall comply with all applicable requirements of 
thispart.
    (g) Tier 0 locomotive labels. Remanufacturers may useidentical 
labels for locomotives and engines for Tier 0 locomotives,provided the 
remanufacturer demonstrates to EPA that they will supplytwo labels (one 
for the locomotive and one for the engine) only withthose 
remanufacturing systems being applied to locomotives that havenot been 
previously labeled (i.e., locomotives that have not beenpreviously 
certified). For other locomotives, the remanufacturer mayonly supply one 
label.
    (h) Labels for calendar year 2005. During calendar year2005, 
manufacturers and remanufacturers may comply with the 
labelingrequirements that were applicable during calendar year 2004, 
insteadof the labeling requirements specified in Sec. 92.212(c)(2)(v).

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]

    Effective Date Note: At 73 FR 37194, June 30, 2008,Sec. 92.12 was 
amended by revising paragraph (b) and addingparagraphs (i) and (j), 
effective July 7, 2008. For the convenience ofthe user, the added and 
revised text is set forth as follows:



Sec. 92.12  Interim provisions.

                                * * * * *

    (b) Production line and in-use testing. (1) The requirementsof 
Subpart F of this part (i.e., production line testing) do not applyprior 
to January 1, 2002.
    (2) The testing requirements of subpart F of this part 
(i.e.,production line testing) do not apply to smallmanufacturers/
remanufacturers prior to January 1, 2013. Note that theproduction line 
audit requirements apply as specified.
    (3) The requirements of Subpart G of this part (i.e., in-usetesting) 
only apply for locomotives and locomotive engines that becomenew on or 
after January 1, 2002.
    (4) For locomotives and locomotive engines that are covered by 
asmall business certificate of conformity, the requirements of SubpartG 
of this part (i.e., in-use testing) only apply for locomotives 
andlocomotive engines that become new on or after January 1,

[[Page 426]]

2007.We will also not require small remanufacturers to perform any in-
usetesting prior to January 1, 2013.

                                * * * * *

    (i) Diesel test fuels. Manufacturers and remanufacturers mayuse LSD 
or ULSD test fuel to certify to the standards of this part,instead of 
the otherwise specified test fuel, provided PM emissionsare corrected as 
described in this paragraph (i). Measure your PMemissions and determine 
your cycle-weighted emission rates asspecified in subpart B of this 
part. If you test using LSD, add 0.04g/bhp-hr to these weighted emission 
rates to determine your officialemission result. If you test using ULSD, 
add 0.05 g/bhp-hr to theseweighted emission rates to determine your 
official emission result.
    (j) Subchapter U provisions. For model years 2008 through2012, 
certain locomotives will be subject to the requirements of thispart 92 
while others will be subject to the requirements of 40 CFRsubchapter U. 
This paragraph (j) describes allowances formanufacturers or 
remanufacturers to ask for flexibility intransitioning to the new 
regulations.
    (1) You may ask to use a combination of the test procedures ofthis 
part and those of 40 CFR part 1033. We will approve your requestif you 
show us that it does not affect your ability to show compliancewith the 
applicable emission standards. Generally this requires thatthe combined 
procedures would result in emission measurements at leastas high as 
those that would be measured using the procedures specifiedin this part. 
Alternatively, you may demonstrate that the combinedeffects of the 
procedures is small relative to your compliance margin(the degree to 
which your locomotives are below the applicablestandards).
    (2) You may ask to comply with the administrative requirements of40 
CFR part 1033 and 1068 instead of the equivalent requirements ofthis 
part.



                        Subpart B_Test Procedures



Sec. 92.101  Applicability.

    Provisions of this subpart apply to tests performed by 
theAdministrator, certificate holders, other manufacturers 
andremanufacturers of locomotives or locomotive engines, railroads 
(andother owners and operators of locomotives), and their 
designatedtesting laboratories. This subpart contains gaseous emission 
testprocedures, particulate emission test procedures, and smoke 
testprocedures for locomotives and locomotive engines.



Sec. 92.102  Definitions and abbreviations.

    The definitions and abbreviations of subpart A of this part applyto 
this subpart. The following definitions and abbreviations, as wellas 
those found in Sec. 92.132 (Calculations), also apply:
    Accuracy means the difference between the measured value andthe true 
value, where the true value is determined from NIST 
traceablemeasurements where possible, or otherwise determined by 
goodengineering practice.
    Calibration means the act of calibrating an analyticalinstrument 
using known standards.
    Calibration gas means a gas of known concentration which isused to 
establish the response curve of an analyzer.
    Good engineering practice means those methods and practiceswhich the 
Administrator determines to be consistent with scientificand engineering 
principles.
    Hang-up refers to the process of hydrocarbon molecules 
beingadsorbed, condensed, or by any other method removed from the 
sampleflow prior to reaching the instrument detector. It also refers to 
anysubsequent desorption of the molecules into the sample flow when 
theyare assumed to be absent.
    Parts per million, carbon or ppmC means theconcentration of an 
organic compound in a gas expressed as parts permillion (by volume or by 
moles) multiplied by the number of carbonatoms in a molecule of that 
compound.
    Precision means the standard deviation of replicatedmeasurements, or 
one-half of the readability, whichever is greater;except where 
explicitly noted otherwise.
    Readability means the smallest difference in measured valuesthat can 
be detected. For example, the readability for a digitaldisplay with two 
decimal places would be 0.01.
    Span gas means a gas of known concentration which is usedroutinely 
to set the output level of an analyzer.
    Standard conditions and standard temperature andpressure mean 68 
[deg]F (20 [deg]C) and 29.92 in Hg. (101.3 kPa).



Sec. 92.103  Test procedures; overview.

    (a) This subpart contains procedures for exhaust emission tests 
oflocomotives and locomotive engines. The

[[Page 427]]

procedures specified hereare intended to measure brake-specific mass 
emissions of organiccompounds (hydrocarbons for locomotives using 
petroleum diesel fuel),oxides of nitrogen, particulates, carbon 
monoxide, carbon dioxide, andsmoke in a manner representative of a 
typical operating cycle.
    (b)(1) The sampling systems specified in this subpart are intendedto 
collect representative samples for analysis, and minimize losses ofall 
analytes.
    (i) For gaseous emissions, a sample of the raw exhaust iscollected 
directly from the exhaust stream and analyzed during eachthrottle 
setting.
    (ii) Particulates are collected on filters following dilution 
withambient air of a separate raw exhaust sample.
    (2) Analytical equipment is identical for all fuel types, with 
theexception of the systems used to measure organics (i.e.,hydrocarbons, 
alcohols, and aldehydes); diesel-fueled and biodiesel-fueled locomotives 
Parts per million and locomotive enginesrequire a heated, continuous 
hydrocarbon detector; natural gas-fueledlocomotives and locomotive 
engines require a continuous hydrocarbondetector and a methane detector; 
alcohol-fueled locomotives andlocomotive engines require a heated 
hydrocarbon detector, alcoholsampling and detection systems, and 
aldehyde sampling and detectionsystems. Necessary equipment and 
specifications appear inSec. Sec. 92.105 through 92.111.
    (3) Fuel specifications for emission testing are specified inSec. 
92.113. Analytical gases are specified inSec. 92.112.
    (c) The power produced by the engine is measured at each 
throttlesetting.
    (d) The fuel flow rate for each throttle setting is measured 
inaccordance with Sec. 92.107.
    (e) Locomotives and locomotive engines are tested using the 
testsequence as detailed in Sec. Sec. 92.124 and 92.126.
    (f) Alternate sampling and/or analytical systems may be used ifshown 
to yield equivalent results, and if approved in advance by 
theAdministrator. Guidelines for determining equivalency are found 
inAppendix IV of this part.
    (g) At the time of the creation of this part, essentially 
alllocomotives and locomotive engines subject to the standards of 
thispart were designed to use diesel fuel. Therefore, the 
testingprovisions of this subpart focus primarily on that fuel. 
Someprovisions for fuels other than diesel are also included. If 
amanufacturer or remanufacturer of locomotives or locomotive engines,or 
a user of locomotives, or other party wishes or intends to use afuel 
other than diesel in locomotives or locomotive engines, it shallnotify 
the Administrator, who shall specify those changes to the testprocedures 
that are necessary for the testing to be consistent withgood engineering 
practice. The changes made under this paragraph (g)shall be limited to:
    (1) Exhaust gas sampling and analysis;
    (2) Test fuels; and
    (3) Calculations.



Sec. 92.104  Locomotive and engine testing; overview.

    (a) The test procedures described here include specifications 
forboth locomotive testing and engine testing. Unless specified 
otherwisein this subpart, all provisions apply to both locomotive and 
enginetesting.
    (b)(1) The test procedures for engine testing are intended toproduce 
emission measurements that are essentially identical toemission 
measurements produced during locomotive testing using thesame engine 
configuration. The following requirements apply for allengine tests:
    (i) Engine speed setpoints for each mode shall be within 2 percentof 
the speed of the engine when it is operated in the locomotive.Engine 
load setpoints for each mode shall be within 2 percent (or 
3.0horsepower, whichever is greater) of the load of the engine when it 
isoperated in the locomotive.
    (ii) The temperature of the air entering the engine after anycharge 
air cooling shall be within 5 [deg]F of the typical intake 
airtemperature when the engine is operated in the locomotive 
undersimilar ambient conditions. Auxiliary fan(s) may be used to 
maintainengine cooling during operation on the dynamometer.
    (iii) The engine air inlet system used during testing shall havean 
air inlet restriction within 1 inch of water of

[[Page 428]]

the upperlimit of a typical engine as installed with clean air filters, 
asestablished by the manufacturer or remanufacturer for the engine 
beingtested.
    (2) Testers performing engine testing under this subpart shall 
notuse test procedures otherwise allowed by the provisions of 
thissubpart where such procedures are not consistent with good 
engineeringpractice and the regulatory goal specified in paragraph 
(b)(1) of thissection.
    (c) Provisions that specify different requirements for 
locomotiveand/or engine testing are described in Sec. Sec. 
92.106,92.108(a) and (b)(1), 92.111(b)(2) and (c), 92.114(a)(2)(ii), 
(b)(3)(ii), (c)(2)(iii)(A) and (d), 92.115(c), 92.116, 92.123(a)(2) and 
(b),92.124(d), 92.125(a) and (b), 92.126(a)(7)(iii)(A).

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]



Sec. 92.105  General equipment specifications.

    (a) Chart recorders. (1) The recommended minimum chart speedfor 
gaseous measurements is 1 cm per minute. (Higher chart speeds 
arerequired for smoke measurements during the acceleration phases of 
thetest sequence.)
    (2) All chart recorders (analyzers, torque, rpm, etc.) shall 
beprovided with automatic markers which indicate ten second 
intervals.Preprinted chart paper (ten second intervals) may be used in 
lieu ofthe automatic markers provided the correct chart speed is 
used.(Markers which indicate 1 second intervals are required for 
smokemeasurements during the acceleration phases of the test sequence.)
    (b) Automatic data collection. (1) In lieu of the use ofchart 
recorders, automatic data collection equipment may be used torecord all 
required data. The automatic data collection equipment mustbe capable of 
sampling at least two records per second.
    (2) Other means may be used provided they produce a permanentvisual 
data record of a quality equal to or better than those requiredby this 
subpart (e.g., tabulated data, traces, or plots).
    (c) Temperature measurements. (1) The following 
temperaturemeasurements shall be accurate to within 1.0 [deg]F (0.6 
[deg]C):
    (i) Temperature measurements used in calculating the engine 
intakehumidity;
    (ii) The temperature of the fuel, in volume measuring flow 
ratedevices;
    (iii) The temperature of the sample within the water trap(s);
    (iv) Temperature measurements used to correct gas volumes (e.g.,to 
standard conditions) or to calculate mass or moles of a sample.
    (2) All other temperature measurements shall be accurate within3.0 
[deg]F (1.7 [deg]C).
    (d) Electrical measurements. Instruments used to measureengine power 
output shall comply with the requirements ofSec. 92.106.
    (e) Pressure measurements. (1) Gauges and transducers usedto measure 
any pressures used to correct gas volumes (e.g., tostandard conditions) 
or to calculate mass or moles of a sample shallhave an accuracy and 
precision of 0.1 percent of absolute pressure atpoint or better.
    (2) Gauges and transducers used to measure any other pressuresshall 
have an accuracy and precision of 1 percent of absolute pressureat point 
or better.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]



Sec. 92.106  Equipment for loading the engine.

    For purposes of placing the required load on the engine during 
anemissions test, either the equipment specified in paragraph (a) ofthis 
section, or the equipment specified in paragraph (b) of thissection may 
be used.
    (a) Locomotive testing. (1) The equipment required forloading the 
locomotive engine-alternator/generator assemblyelectrically, and for 
measurement of the electrical power output fromthe alternator/generator 
consists of the following, either in total orin part: electrical 
resistance load bank; fans or other means forcooling of the load bank; 
wattmeter, including phase anglecompensation; meter(s) for measurement 
of the current through the loadbank (a calibrated electrical shunt and 
voltmeter is allowed forcurrent measurement); meter(s) to measure the

[[Page 429]]

voltage across theload bank; and electrical cable to connect the 
alternator/generator tothe load bank. Many locomotives are equipped with 
an internalelectrical resistance load bank and fans for cooling of the 
load bank;when so equipped, the locomotive load bank may be used for 
purposes ofloading the engine during emissions tests.
    (2) The combination of instruments (meters) used to measure engineor 
alternator/generator power output (wattmeter, ammeter, voltmeter)shall 
have accuracy and precision such that the accuracy of themeasured 
alternator/generator power out is better than:
    (i) 2 percent of point at all power settings except idle anddynamic 
brake; and
    (ii) Less accuracy and precision is allowed at idle and 
dynamicbrake, consistent with good engineering practice. Equipment 
withaccuracy or precision worse than 20 percent of point is not allowed.
    (3) The efficiency curve for the alternator/generator, shallspecify 
the efficiency at each test point. The manufacturer orremanufacturer 
shall provide EPA with a detailed description of theprocedures used to 
establish the alternator/generator efficiency.
    (b) Engine testing. (1) For engine testing using adynamometer, the 
engine dynamometer system must be capable ofcontrolling engine torque 
and speed simultaneously under steady speedoperation, during 
accelerations where the rate of change in torque andspeed is 
representative of those changes which occur when the engineis operating 
in a locomotive. It must also be capable of performingthe test sequence 
described in this subpart. In addition to thesegeneral requirements, the 
engine or dynamometer readout signals forspeed and torque shall meet the 
following accuracy specifications:
    (i) Engine speed readout shall be accurate to within 2percent of the absolute standard value, as defined 
inSec. 92.116 of this part.
    (ii) Engine flywheel torque readout shall be accurate to 
within2 percent of the NIST ``true'' value torque 
atall power settings above 10 percent of full-scale, and accurate 
towithin 5 percent of the NIST ``true'' 
valuetorque at power settings at or below 10 percent of full-scale.
    (2) For engine testing using a locomotive alternator/
generatorinstead of a dynamometer, the equipment used shall comply with 
therequirements of paragraph (a) of this section.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July13, 2005]



Sec. 92.107  Fuel flow measurement.

    (a) Fuel flow measurement for locomotive and engine testing.The rate 
of fuel consumption by the engine must be measured withequipment 
conforming to the following:
    (1) The fuel flow rate measurement instrument must have a 
minimumaccuracy of 2 percent of measurement flow 
rate for eachmeasurement range used. An exception is allowed at idle 
where theminimum accuracy is 10 percent of 
measured flow rate for eachmeasurement range used. The measurement 
instrument must be able tocomply with this requirement with an averaging 
time of one minute orless, except for idle, dynamic brake, and notches 1 
and 2 where theinstrument must be able to comply with this requirement 
with anaveraging time of three minutes or less.
    (2) The controlling parameters are the elapsed time measurement 
ofthe event and the weight or volume measurement. Restrictions on 
theseparameters are:
    (i) The error in the elapsed time measurement of the event mustnot 
be greater than 1 percent of the absolute event time. Thisincludes 
errors in starting and stopping the clock as well as theperiod of the 
clock.
    (ii) If the mass of fuel consumed is measured by discrete 
weights,then the error in the actual weight of the fuel consumed must 
not begreater than 1 percent of the measuring 
weight. An exceptionis allowed at idle, where the error in the actual 
weight of the fuelconsumed must not be greater than 2 percent of the measuringweight.
    (iii) If the mass of fuel consumed is measured electronically(load 
cell, load beam, etc.), the error in the actual weight of fuelconsumed 
must not be greater than 1 percent of the full-
scalevalue of the electronic device.

[[Page 430]]

    (iv) If the mass of fuel consumed is measured by volume flowand 
density, the error in the actual volume consumed must not begreater than 
1 percent of the full-scale value of the 
volumemeasuring device.
    (3) For devices that have varying mass scales (electronic 
weight,volume, density, etc.), compliance with the requirements of 
paragraph(a)(1) of this section may require a separate flow measurement 
systemfor low flow rates.
    (b) Calibration. Fuel flow rate measurement devices shall 
becalibrated against an independent measurement of the total mass offuel 
dispensed during a fixed amount of time in accordance with thefollowing 
provisions:
    (1) Measurement of the total mass shall have an accuracy 
andprecision of 1 percent of point, or better.
    (2) Fuel measurements shall be performed for at least 10 flowrates 
evenly distributed over the entire range of fuel flow rates usedduring 
testing.
    (3) For each flow rate, either the total mass of fuel dispensemust 
exceed 5.0 kilograms (11.0 pounds), or the length of time duringwhich 
the fuel is dispensed must exceed 30 minutes. In all cases, thelength of 
time during which fuel is dispensed must be at least 180seconds.



Sec. 92.108  Intake and cooling air measurements.

    (a) Intake air flow measurement. Measurement of the flowrate of 
intake air into the engine is allowed for engine testing, butnot 
required. When it is measured, the measurement technique shallconform to 
the following:
    (1) The air flow measurement method used must have a range 
largeenough to accurately measure the air flow over the engine 
operatingrange during the test. Overall measurement accuracy must be 
2percent of full-scale value of the measurement 
device for all modesexcept idle. For idle, the measurement accuracy 
shall be 5percent or less of the full-scale value. 
The Administrator must beadvised of the method used prior to testing.
    (2) Corrections to the measured air mass flowrate shall be madewhen 
an engine system incorporates devices that add or subtract airmass (air 
injection, bleed air, etc.). The method used to determinethe air mass 
from these devices shall be approved by theAdministrator.
    (3) Measurements made in accordance with SAE recommended 
practiceJ244 (incorporated by reference at Sec. 92.5) are allowed.
    (b) Humidity and temperature measurements. (1) Air that hashad its 
absolute humidity altered is considered humidity-conditionedair. For 
this type of intake air supply, the humidity measurementsmust be made 
within the intake air supply system, and after thehumidity conditioning 
has taken place.
    (2) Humidity measurements for non-conditioned intake air 
supplysystems shall be made as closely as possible to the point at which 
theintake air stream enters the locomotive, or downstream of that point.
    (3) Temperature measurements of engine intake air, engine intakeair 
after compression and cooling in the charge air cooler(s) (enginetesting 
only), and air used to cool the charge air after compression,and to cool 
the engine shall be made as closely as possible to obtainaccurate 
results based on engineering judgement. Measurement ofambient 
temperature for locomotive testing shall be made within 48inches of the 
locomotive, at a location that minimizes the effect ofheat generated by 
the locomotive on the measured temperature.
    (4) Temperature measurements shall comply with the requirements 
ofSec. 92.105(c).
    (5) Humidity measurements shall be accurate within 2 percent ofthe 
measured absolute humidity.



Sec. 92.109  Analyzer specifications.

    (a) General analyzer specifications.--(1) Analyzerresponse time. 
Analyzers for THC, CO2, CO, andNOX must respond to 
an instantaneous step change at theentrance to the analyzer with a 
response equal to 95 percent of thatstep change in 6.0 seconds or less 
on all ranges used. The step changeshall be at least 60 percent of full-
scale chart deflection. ForNOX analyzers using a water trap, 
the response timeincrease due to the water trap and associated plumbing 
need not beincluded in the analyzer response time.

[[Page 431]]

    (2) Precision. The precision of the analyzers for 
THC,CO2, CO, and NOX must be no greater than1 percent of full-scale concentration for each range 
usedabove 155 ppm (or ppmC), or 2 percent for each 
range usedbelow 155 ppm (or ppmC). The precision is defined as 2.5 times 
thestandard deviation(s) of 10 repetitive responses to a 
givencalibration or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero andcalibration 
or span gases over any 10-second period shall not exceed 2percent of 
full/scale chart deflection on all ranges used.
    (4) Zero drift. For THC, CO2, CO, andNOX 
analyzers, the zero-response drift during a 1-hourperiod shall be less 
than 2 percent of full-scale chart deflection onthe lowest range used. 
The zero-response is defined as the meanresponse including noise to a 
zero-gas during a 30-second timeinterval.
    (5) Span drift. For THC, CO2, CO, andNOX 
analyzers, the span drift during a 1-hour period shallbe less than 2 
percent of full-scale chart deflection on the lowestrange used. The 
analyzer span is defined as the difference between thespan-response and 
the zero-response. The span-response is defined asthe mean response 
including noise to a span gas during a 30-secondtime interval.
    (b) Carbon monoxide and carbon dioxide analyzerspecifications. (1) 
Carbon monoxide and carbon dioxide measurementsare to be made with 
nondispersive infrared (NDIR) analyzers.
    (2) The use of linearizing circuits is permitted.
    (3) The minimum water rejection ratio (maximum 
CO2interference) as measured in Sec. 92.120(a) shall be:
    (i) For CO analyzers, 1000:1.
    (ii) For CO2 analyzers, 100:1.
    (4) The minimum CO2 rejection ratio 
(maximumCO2 interference) as measured in Sec. 92.120(b)for 
CO analyzers shall be 5000:1.
    (5) Zero suppression. Various techniques of zero suppressionmay be 
used to increase readability, but only with prior approval bythe 
Administrator.
    (6) Option: if the range of CO concentrations encountered duringthe 
different test modes is too broad to allow accurate measurementusing a 
single analyzer, then multiple CO analyzers may be used.
    (c) Hydrocarbon analyzer specifications. (1) Hydrocarbonmeasurements 
are to be made with a heated flame ionization detector(HFID) analyzer. 
An overflow sampling system is recommended but notrequired. (An overflow 
system is one in which excess zero gas or spangas spills out of the 
probe when zero or span checks of the analyzerare made.
    (i) Option. A non-heated flame ionization detector (FID)that 
measures hydrocarbon emissions on a dry basis is permitted forpetroleum 
fuels other than diesel and biodiesel; Provided, thatequivalency is 
demonstrated to the Administrator prior to testing.With the exception of 
temperatures, all specifications contained inSubpart B of this part 
apply to the optional system.
    (ii) The analyzer shall be fitted with a constant temperature 
ovenhousing the detector and sample-handling components. It shall 
maintaintemperature with 3.6 [deg]F (2 [deg]C) of the set point. 
Thedetector, oven, and sample-handling components within the oven 
shallbe suitable for continuous operation at temperatures to 395 
[deg]F(200 [deg]C).
    (iii) Fuel and burner air shall conform to the specifications 
inSec. 92.112(e).
    (iv) The percent of oxygen interference must be less than 3percent, 
as specified in Sec. 92.119(3).
    (v) Premixed burner air. (A) For diesel and biodiesel fueledengines, 
premixing a small amount of air with the HFID fuel prior tocombustion 
within the HFID burner is not recommended as a means ofimproving oxygen 
interference (%O2I). However, thisprocedure may be used if 
the engine manufacturer demonstrates on eachbasic combustion system 
(i.e., four-cycle direct injection, two-cycledirect injection, four-
cycle indirect injection, etc.) that an HFIDusing this procedure 
produces comparable results to an HFID not usingthis procedure. These 
data must be submitted to the Administrator forhis/her approval prior to 
testing.
    (B) For engines operating on fuels other than diesel or 
biodiesel,premixing burner air with the HFID fuel is not allowed.

[[Page 432]]

    (2) Methane analyzer. The analytical system for methaneconsists of a 
gas chromatograph (GC) combined with a flame ionizationdetector (FID).
    (3) Alcohols and Aldehydes. The sampling and analysisprocedures for 
alcohols and aldehydes, where applicable, shall beapproved by the 
Administrator prior to the start of testing.Procedures are allowed if 
they are consistent with the generalrequirements of 40 CFR part 1065, 
subpart I, for sampling and analysisof alcohols and aldehydes, and with 
good engineering practice.
    (4) Other methods of measuring organics that are shown to 
yieldequivalent results can be used upon approval of the 
Administratorprior to the start of testing.
    (d) Oxides of nitrogen analyzer specifications. (1) Oxidesof 
nitrogen are to be measured with a chemiluminescence (CL) analyzer.
    (i) The NOX sample must be heated perSec. 92.114 up to 
the NO2 to NO converter.
    (ii) For high vacuum CL analyzers with heated capillary 
modules,supplying a heated sample to the capillary module is sufficient.
    (iii) The NO2 to NO converter efficiency shall be atleast 
90 percent.
    (iv) The CO2 quench interference must be less than 
3.0percent as measured in Sec. 92.121(a).

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July13, 2005]



Sec. 92.110  Weighing chamber and micro-balance.

    (a) Ambient conditions--(1) Temperature. Thetemperature of the 
chamber (or room) in which the particulate filtersare conditioned and 
weighed shall be maintained at a measuredtemperature between 19 [deg]C 
and 25 [deg]C during all filterconditioning and weighing.
    (2) Humidity. The relative humidity of the chamber (or room)in which 
the particulate filters are conditioned and weighed shall be458 percent during all filter conditioning and weighing. 
Thedew point shall be 6.4 to 12.4 [deg]C.
    (b) Weighing balance specifications. The microbalance usedto 
determine the weights of all filters shall have a precision(standard 
deviation) of no more than 20 micrograms and readabilitydown to 10 
micrograms or lower.
    (c) Reference filters. The chamber (or room) environmentshall be 
free of any ambient contaminants (such as dust) that wouldsettle on the 
particulate filters during their stabilization. It isrequired that at 
least two unused reference filters remain in theweighing room at all 
times in covered (to reduce dust contamination)but unsealed (to permit 
humidity exchange) petri dishes.
    (1) These reference filters shall be placed in the same generalarea 
as the sample filters. These reference filters shall be weighedwithin 4 
hours of, but preferably at the same time as, the samplefilter 
weighings.
    (2) If the average weight of the reference filters changes 
betweensample filter weighings by 5.0 percent 
(7.5 if thefilters are weighed in pairs) or more 
of the target nominal filterloading (the recommended nominal loading is 
0.5 milligrams per 1075square millimeters of stain area), then all 
sample filters in theprocess of stabilization shall be discarded and the 
emissions testsrepeated.
    (3) If the average weight of the reference filters decreasesbetween 
sample filter weighings by more than 1.0 percent but less than5.0 
percent of the nominal filter loading then the manufacturer 
orremanufacturer has the option of either repeating the emissions testor 
adding the average amount of weight loss to the net weight of thesample.
    (4) If the average weight of the reference filters increasesbetween 
sample filter weighing by more than 1.0 percent but less than5.0 percent 
of the nominal filter loading, then the manufacturer orremanufacturer 
has the option of either repeating the emissions testor accepting the 
measured sample filter weight values.
    (5) If the average weight of the reference filters changes 
betweensample filter weighings by not more than 1.0 percent, thenthe measured sample filter weights 
shall be used.
    (6) The reference filters shall be changed at least once a month,but 
never between clean and used weighings of a given sample filter.More 
than one set of reference filters

[[Page 433]]

may be used. The referencefilters shall be the same size and material as 
the sample filters.



Sec. 92.111  Smoke measurement system.

    (a) Schematic drawing. Figure B111-1 of this sectionis a schematic 
drawing of the optical system of the light extinctionmeter, as follows:

[[Page 434]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.000

    (b) Equipment. The following equipment shall be used in thesystem.
    (1) Adapter. The smokemeter optical unit may be mounted on afixed or 
movable frame. The normal unrestricted shape of the exhaustplume shall 
not be modified by the adaptor, the meter, or anyventilation system

[[Page 435]]

used to remove the exhaust from the test site.Distortion due to the 
gaseous or particulate sample probes, or theexhaust duct is allowed 
subject to the provisions ofSec. 92.114.
    (2) Wind shielding. Tests shall not be conducted underexcessively 
windy conditions. Winds are excessive if they disturb thesize, shape, or 
location of the exhaust plume in the region whereexhaust samples are 
drawn or where the smoke plume is measured. Testsmay be conducted if 
wind shielding is placed adjacent to the exhaustplume to prevent 
bending, dispersion, or any other distortion of theexhaust plume as it 
passes through the optical unit.
    (3) Smokemeter, (light extinction meter). A continuouslyrecording, 
full-flow light obscuration meter shall be used.
    (i) It is positioned as specified in paragraph (c) of thissection, 
so that a built-in light beam traverses the exhaust smokeplume which 
issues from the duct. The light beam shall be at rightangles to the axis 
of the plume, and in those cases were the exhaustis not circular at its 
discharge, the path of the light beam throughthe plume shall be along 
the longest axis of the exhaust stack whichis not a diagonal of a 
rectangular exhaust stack.
    (ii) The light source shall be an incandescent lamp with a 
colortemperature range of 2800K to 3250K, or a light source with a 
spectralpeak between 550 and 570 nanometers.
    (iii) The light output is collimated to a beam with a 
nominaldiameter of 1.125 inches and an angle of divergence within a 6 
degreeincluded angle.
    (iv) The light detector shall be a photocell or photodiode. If 
thelight source is an incandescent lamp, the detector shall have 
aspectral response similar to the photopic curve of the human eye 
(amaximum response in the range of 550 to 570 nanometers, to less 
thanfour percent of that maximum response below 430 nanometers and 
above680 nanometers).
    (v) A collimating tube with apertures equal to the beam diameteris 
attached to the detector to restrict the viewing angle of thedetector to 
within a 16 degree included angle.
    (vi) An amplified signal corresponding to the amount of lightblocked 
is recorded continuously on a remote recorder.
    (vii) An air curtain across the light source and detector 
windowassemblies may be used to minimize deposition of smoke particles 
onthose surfaces provided that it does not measurably affect the 
opacityof the plume.
    (viii) The smokemeter consists of two units; an optical unit and 
aremote control unit.
    (ix) Light extinction meters employing substantially 
identicalmeasurement principles and producing substantially equivalent 
results,but which employ other electronic and optical techniques may be 
usedonly after having been approved in advance by the Administrator.
    (4) Recorder. A continuous recorder, with variable chartspeed over a 
minimal range of 1 to 20 cm per minute (or equivalent)and an automatic 
marker indicating 1-second intervals, continuouslyrecords the exhaust 
gas opacity and throttle position.
    (i) The recorder is equipped to indicate each of the throttlenotch 
(test mode) positions.
    (ii) The recorder scale for opacity is linear and calibrated toread 
from 0 to 100 percent opacity full scale.
    (iii) The opacity trace has a resolution within one percentopacity.
    (iv) The throttle position trace clearly indicates each 
throttleposition.
    (5) The recorder used with the smokemeter shall be capable offull-
scale deflection in 0.5 second or less. The smokemeter-
recordercombination may be damped so that signals with a frequency 
higher than10 cycles per second are attenuated. A separate low-pass 
electronicfilter with the following performance characteristics may be 
installedbetween the smokemeter and the recorder to achieve the high-
frequencyattenuation:
    (i) Three decibel point: 10 cycles per second.
    (ii) Insertion loss: 0 0.5 decibel.
    (iii) Selectivity: 12 decibels down at 40 cycles per secondminimum.
    (iv) Attenuation: 27 decibels down at 40 cycles per secondminimum.
    (6) Automatic data collection equipment may be used, provided itis 
capable of collecting data equivalent to or

[[Page 436]]

better than thedata required by paragraphs (b)(4) and (5) of this 
section.
    (c)(1) Assembling equipment for locomotive testing. Theoptical unit 
of the smokemeter shall be mounted radially to theexhaust duct so that 
the measurement will be made at right angles tothe axis of the exhaust 
plume. The distance from the opticalcenterline to the exhaust outlet 
shall be minimized; in all cases itshall be less than 10 feet. The 
maximum allowable distance of unductedspace upstream of the optical 
centerline is 18 inches. The full flowof the exhaust stream shall be 
centered between the source anddetector apertures (or windows and 
lenses) and on the axis of thelight beam.
    (2) Assembling equipment for engine testing. The opticalunit of the 
smokemeter shall be mounted radially to the exhaust ductso that the 
measurement will be made at right angles to the axis ofthe exhaust 
plume. The distance from the optical centerline to theexhaust outlet 
shall be less than 25 feet. The maximum allowabledistance of unducted 
space upstream of the optical centerline is 18inches. In-line 
smokemeters are allowed. The full flow of the exhauststream shall be 
centered between the source and detector apertures (orwindows and 
lenses) and on the axis of the light beam.
    (d) Power supply. Power shall be supplied to the controlunit of the 
smokemeter in time to allow at least 15 minutes forstabilization prior 
to testing.



Sec. 92.112  Analytical gases.

    (a) Gases for the CO and CO2 analyzers shall be 
singleblends of CO and CO2, respectively, using zero 
gradenitrogen as the diluent.
    (b) Gases for the hydrocarbon analyzer shall be single blends 
ofpropane using zero grade air as the diluent.
    (c) Gases for the methane analyzer shall be single blends ofmethane 
using air as the diluent.
    (d) Gases for the NOX analyzer shall be single blendsof 
NO named as NOX with a maximum NO2concentration of 
5 percent of the nominal value using zero gradenitrogen as the diluent.
    (e) Fuel for the HFID (or FID, as applicable) and the 
methaneanalyzer shall be a blend of 402 percent 
hydrogen with thebalance being helium. The mixture shall contain less 
than 1 ppmequivalent carbon response; 98 to 100 percent hydrogen fuel 
may beused with advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration ofoxygen must 
be within 1 mole percent of the oxygen concentration ofthe burner air 
used in the latest oxygen interference check(%O2I). If the 
difference in oxygen concentration isgreater than 1 mole percent, then 
the oxygen interference must bechecked and the analyzer adjusted if 
necessary, to meet the%O2I requirements. The burner air must 
contain less than 2ppmC hydrocarbon.
    (g) The allowable zero gas (air or nitrogen) impurityconcentrations 
shall not exceed 1 ppm equivalent carbon response, 1ppm carbon monoxide, 
0.04 percent (400 ppm) carbon dioxide and 0.1 ppmnitric oxide.
    (h)(1) ``Zero-grade air'' includes artificial``air'' consisting of a 
blend of nitrogen and oxygen withoxygen concentrations between 18 and 21 
mole percent.
    (2) Calibration gases shall be accurate to within 1percent of NIST gas standards, or other gas standards 
which have beenapproved by the Administrator.
    (3) Span gases shall be accurate to within 2 
percent ofNIST gas standards, or other gas standards which have been 
approved bythe Administrator.
    (i) Oxygen interference check gases shall contain propane at 
aconcentration greater than 50 percent of range. The concentrationvalue 
shall be determined to calibration gas tolerances bychromatographic 
analysis of total hydrocarbons plus impurities or bydynamic blending. 
Nitrogen shall be the predominant diluent with thebalance being oxygen. 
Oxygen concentration in the diluent shall bebetween 20 and 22 percent.
    (j) The use of precision blending devices (gas dividers) to 
obtainthe required calibration gas concentrations is acceptable, 
providedthat the blended gases are accurate to within 1.5 percent ofNIST gas standards, or other gas standards 
which have been approved bythe Administrator. This accuracy implies that 
primary gases used

[[Page 437]]

for blending must be ``named'' to an accuracy of atleast 1 percent, traceable to NIST or other approved 
gasstandards.



Sec. 92.113  Fuel specifications.

    (a) Diesel test fuel. (1) The diesel fuels for testinglocomotives or 
locomotive engines designed to operate on diesel fuelshall be clean and 
bright, with pour and cloud points adequate foroperability. The diesel 
fuel may contain nonmetallic additives asfollows: cetane improver, metal 
deactivator, antioxidant, dehazer,antirust, pour depressant, dye, 
dispersant, and biocide. The dieselfuel shall also meet the 
specifications (as determined using methodsincorporated by reference at 
Sec. 92.5) in TableB113-1 of this section, or substantially 
equivalentspecifications approved by the Administrator, as follows:

                              Table B113-1
------------------------------------------------------------------------
                 Item                          ASTM           Type2-D
------------------------------------------------------------------------
Cetane Number.........................  D613.............        40-48
Cetane Index..........................  D976.............        40-48
Distillation range:
  IBP,
     [deg]F...........................  D86..............      340-400
    ( [deg]C).........................  .................  (171.1-204.4)
  10 pct. point,
     [deg]F...........................  D86..............      400-460
    ( [deg]C).........................  .................  (204.4-237.8)
  50 pct. point,
     [deg]F...........................  D86..............      470-540
    ( [deg]C).........................  .................  (243.3-282.2)
  90 pct. point,
     [deg]F...........................  D86..............      560-630
    ( [deg]C).........................  .................  (293.3-332.2)
  EP,
     [deg]F...........................  D86..............      610-690
    ( [deg]C).........................  .................  (321.1-365.6)
Gravity, [deg]API.....................  D287.............        32-37
Total sulfur, pct.....................  D2622............      0.2-0.4
Hydrocarbon composition, pct:
  Aromatics,..........................  D5186............       \1\ 27
  Paraffins, Naphthenes, Olefins......  D1319............         (\2\)
Flashpoint, min.,
   [deg]F.............................  D93..............          130
   [deg]C.............................  .................        (54.4)
Viscosity, centistokes................  D445.............      2.0-3.2
------------------------------------------------------------------------
\1\ Minimum. \2\ Remainder.

    (2) Other diesel fuels may be used for testing provided:
    (i) They are commercially available; and
    (ii) Information, acceptable to the Administrator, is provided 
toshow that only the designated fuel would be used in service; and
    (iii) Use of a fuel listed under paragraph (a)(1) of this 
sectionwould have a detrimental effect on emissions or durability; and
    (iv) Written approval from the Administrator of the 
fuelspecifications is provided prior to the start of testing.
    (3) The specification of the fuel to be used under paragraphs 
(a)(1), and (a)(2) of this section shall be reported in accordance 
withSec. 92.133.
    (b) Natural gas test fuel (compressed natural gas, liquefiednatural 
gas). (1) Natural gas-fuel meeting the specifications (asdetermined 
using methods incorporated by reference atSec. 92.5) in Table B113-2 of 
this section, orsubstantially similar specifications approved by the 
Administrator,shall be used in exhaust emissions testing of locomotives 
orlocomotive engines designed to operate on natural gas-fuel, asfollows:

                              Table B113-2
------------------------------------------------------------------------
                                                    ASTM test
               Item                  Mole pct.     method No.     Value
------------------------------------------------------------------------
Methane..........................  Min.........  D1945.........     89.0
Ethane...........................  Max.........  D1945.........      4.5
C3 and higher....................  Max.........  D1945.........      2.3
C6 and higher....................  Max.........  D1945.........      0.2
Oxygen...........................  Max.........  D1945.........      0.6
Inert gases: Sum of CO2 andN2--    Max.........  D1945.........      4.0
 Odorant \1\.
------------------------------------------------------------------------
\1\ The natural gas at ambient conditions must have adistinctive odor
  potent enough for its presence to be detected down toa concentration
  in air of not over \1/5\ (one-fifth) of the lowerlimit of
  flammability.

    (2) Other natural gas-fuels may be used for testing provided:
    (i) They are commercially available; and
    (ii) Information, acceptable to the Administrator, is provided 
toshow that only the designated fuel would be used in customer 
service;and
    (iii) Written approval from the Administrator of the 
fuelspecifications is provided prior to the start of testing.
    (3) The specification of the fuel to be used under paragraph (b)(1) 
or (b)(2) of this section shall be reported in accordance withSec. 
92.133.
    (c) Other fuel types. (1) For locomotives or locomotiveengines which 
are designed to be capable of using a type of fuel (ormixed fuel) other 
than diesel fuel, or natural gas fuel (e.g.,methanol), and which are 
expected to use that type of fuel (or mixedfuel) in

[[Page 438]]

service, a commercially available fuel of that typeshall be used for 
exhaust emission testing. The Administrator shalldetermine the 
specifications of the fuel to be used for testing, basedon the engine 
design, the specifications of commercially availablefuels, and the 
recommendation of the manufacturer.
    (2) The specification of the fuel to be used under paragraph (c)(1) 
of this section shall be reported in accordance withSec. 92.133.



Sec. 92.114  Exhaust gas and particulate sampling and analytical system.

    (a) General. (1) During emission testing, the engine exhaustis 
routed through an exhaust duct connected to, or otherwise adjacentto the 
outlet of the locomotive exhaust system. Emission samples arecollected 
as specified in paragraphs (b) and (c) of this section.Exhaust duct 
requirements are specified in paragraph (d) of thissection.
    (2) The systems described in this section are appropriate for 
usewith locomotives or engines employing a single exhaust.
    (i) For testing where the locomotive or engine has multipleexhausts 
all exhaust streams shall be combined into a single streamprior to 
sampling, except as allowed by paragraph (a)(2)(ii) of thissection.
    (ii) For locomotive testing where the locomotive has multipleexhaust 
stacks, proportional samples may be collected from eachexhaust outlet 
instead of ducting the exhaust stacks together,provided that the 
CO2 concentrations in each exhauststream are shown (either 
prior to testing or during testing) to bewithin 5 percent of each other 
at notch 8.
    (3) All vents, including analyzer vents, bypass flow, and 
pressurerelief vents of regulators, should be vented in such a manner to 
avoidendangering personnel in the immediate area.
    (4) Additional components, not specified here, such asinstruments, 
valves, solenoids, pumps, switches, and so forth, may beemployed to 
provide additional information and coordinate thefunctions of the 
component systems, provided that their use isconsistent with good 
engineering practice. Any variation from thespecifications in this 
subpart including performance specificationsand emission detection 
methods may be used only with prior approval bythe Administrator.
    (b) Raw exhaust sampling for gaseous emissions. (1)(i) Anexample of 
the type of sampling and analytical system which is to beused for 
gaseous emissions testing under this subpart is shown inFigure B114-1 of 
this section. All components or parts ofcomponents that are wetted by 
the sample or corrosive calibrationgases shall be either chemically 
cleaned stainless steel or otherinert material, for example, 
polytetrafluoroethylene resin. The use of``gauge savers'' or 
``protectors'' withnonreactive diaphragms to reduce dead volumes is 
permitted. Additionalcomponents such as instruments, valves, solenoids, 
pumps, switches,etc. may be employed to provide additional information 
and coordinatethe functions of the component systems.
    (ii) System components list. The following is a list ofcomponents 
shown in Figure B114-1 of this section by numericidentifier.
    (A) Filters. Glass fiber filter paper is permitted for thefine 
particulate filters (F1, F2, and F3). Optional filter F4 is acoarse 
filter for large particulates. Filters F3 and F4 are heatedfilters
    (B) Flowmeters. Flowmeters FL1 and FL2 indicate sample flowrates 
through the CO and CO2 analyzers. Flowmeters FL3,FL4, FL5, 
and FL6 indicate bypass flow rates.
    (C) Gauges. Downstream gauges are required for any systemused for 
testing under this subpart. Upstream gauges may be requiredunder this 
subpart. Upstream gauges G1 and G2 measure the input to theCO and 
CO2 analyzers. Downstream gauges G3 and G4 measurethe exit 
pressure of the CO and CO2 analyzers. If thenormal operating 
range of the downstream gauges is less than 3 inchesof water, then the 
downstream gauges must be capable of reading bothpressure and vacuum. 
Gauges G3 and G4 are not necessary if theanalyzers are vented directly 
to atmospheric pressure.
    (D) Pressure gauges. P1 is a bypass pressure gauge; P2, P3,P4, and 
P5 are for sample or span pressure at inlet to flow controlvalves.

[[Page 439]]

    (E) Water traps. Water traps WT1 and WT2 to removewater from the 
sample. A water trap performing the function of WT1 isrequired for any 
system used for testing under this subpart. Chemicaldryers are not an 
acceptable method of removing the water. Waterremoval by condensation is 
acceptable. If water is removed bycondensation, the sample gas 
temperature or sample dew point must bemonitored either within the water 
trap or downstream; it may notexceed 45 [deg]F (7 [deg]C). Means other 
than condensation may beused only with prior approval from the 
Administrator.
    (F) Regulators. R1, R3, R4, and R6 are line pressureregulators to 
control span pressure at inlet to flow control valves;R2 and R5 are back 
pressure regulators to control sample pressure atinlet to flow control 
valves.
    (G) Valves. V1, V7, V8, and V14 are selector valves toselect zero or 
calibration gases; V2 are optional heated selectorvalves to purge the 
sample probe, perform leak checks, or to performhang-up checks; V3 and 
V5 are selector valves to select sample or spangases; V4, V6, and V15 
are flow control valves; V9 andV13--heated selector valve to select 
sample or span gases; V10and V12--heated flow control valves; V11--
Selector valveto select NOX or bypass mode in the 
chemiluminescenceanalyzer; V16--heated selector valve to perform leak 
checks.
    (H) Pump. Sample transfer pump to transport sample toanalyzers.
    (I) Temperature sensor. A temperature sensor (T1) to measurethe 
NO2 to NO converter temperature is required for anysystem 
used for testing under this subpart.
    (J) Dryer. Dryers D1 and D2 to remove the water from thebypass flows 
to prevent condensation in flowmeters FL3, FL4, and FL6.
    (2) The following requirements must be incorporated in eachgaseous 
sampling system used for testing under this subpart:
    (i) The exhaust is analyzed for gaseous emissions using 
analyzersmeeting the specifications of Sec. 92.109, and all 
analyzersmust obtain the sample to be analyzed from the same sample 
probe, andinternally split to the different analyzers.
    (ii) Sample transfer lines must be heated as specified inparagraph 
(b)(4) of this section.
    (iii) Carbon monoxide and carbon dioxide measurements must be madeon 
a dry basis. Specific requirements for the means of drying thesample can 
be found in paragraph (b)(1)(ii)(E) of this section.
    (iv) All NDIR analyzers must have a pressure gauge 
immediatelydownstream of the analyzer. The gauge tap must be within 2 
inches ofthe analyzer exit port. Gauge specifications can be found in 
paragraph(b)(1)(ii)(C) of this section.
    (v) All bypass and analyzer flows exiting the analysis system mustbe 
measured. Capillary flows such as in HFID and CL analyzers areexcluded. 
For each NDIR analyzer with a flow meter located upstream ofthe 
analyzer, an upstream pressure gauge must be used. The gauge tapmust be 
within 2 inches of the analyzer entrance port.
    (vi) Calibration or span gases for the NOX 
measurementsystem must pass through the NO2 to NO converter.
    (vii) The temperature of the NO2 to NO converter mustbe 
displayed continuously.
    (3) Gaseous sample probe. (i) The gaseous emissions sampleprobe 
shall be a straight, closed end, stainless steel, multi-holeprobe. The 
inside diameter shall not be greater than the insidediameter of the 
sample line by more than 0.01 inches (0.03 cm). Thewall thickness of the 
probe shall not be greater than 0.04 inches(0.10 cm). The fitting that 
attaches the probe to the exhaust ductshall be as small as practical in 
order to minimize heat loss from theprobe.
    (ii) The gaseous emissions sample probe shall have a minimum ofthree 
holes in each 3 inch segment of length of the probe. The spacingof the 
radial planes for each hole in the probe must be such that theycover 
approximately equal cross-sectional areas of the exhaust duct.The 
angular spacing of the holes must be approximately equal. Theangular 
spacing of any two holes in one plane may not be 180[deg]20[deg] (see section view C-C of Figure B114-2of

[[Page 440]]

this section). The holes should be sized such that each hasapproximately 
the same flow. If only three holes are used in each 3inch segment of 
probe length, they may not all be in the same radialplane.
    (iii) The sample probe shall be so located in the center of 
theexhaust duct to minimize stratification, with respect to 
bothconcentration and velocity, present in the exhaust stream. The 
probeshall be located between two feet and five feet downstream of 
thelocomotive exhaust outlet (or nearest practical equivalent 
duringengine testing), and at least 1 foot upstream of the outlet of 
theexhaust duct to the atmosphere.
    (iv) If the exhaust duct is circular in cross section, the 
sampleprobe should extend approximately radially across the exhaust 
duct,and approximately through the center of the duct. The sample 
probemust extend across at least 80 percent of the diameter of the duct.
    (v) If the exhaust duct is not circular in cross section, thesample 
probe should extend across the exhaust duct approximatelyparallel to the 
longest sides of the duct, or along the longest axisof the duct which is 
not a diagonal, and through the approximatecenter of the duct. The 
sample probe must extend across at least 80percent of the longest axis 
of the duct which is not a diagonal, andbe approximately parallel to the 
longest sides of the duct.
    (vi) Other sample probe designs and/or locations may be used onlyif 
demonstrated (to the Administrator's satisfaction) to provides amore 
representative sample.
    (4) Sample transfer line(s). (i) The maximum inside diameterof the 
gaseous emissions sample line shall not exceed 0.52 inches(1.32 cm).
    (ii) If valve V2 is used, the sample probe must connect directlyto 
valve V2. The location of optional valve V2 may not be greater than4 
feet (1.22 m) from the exhaust duct.
    (iii) The sample transport system from the engine exhaust duct tothe 
HC analyzer and the NOX analyzer must be heated as 
isindicated in Figure B114-1 of this section.
    (A) For diesel fueled and biodiesel fueled locomotives andengines, 
the wall temperature of the HC sample line must be maintainedat 375 
20 [deg]F (191 11 [deg]C). 
An exception ismade for the first 4 feet (122 cm) of sample line from 
the exhaustduct. The upper temperature tolerance for this 4 foot section 
iswaived and only the minimum temperature specification applies.
    (B) For locomotives and engines using fuels other than diesel 
orbiodiesel, the heated components in the HC sample path shall 
bemaintained at a temperature approved by the Administrator, 
notexceeding 446 [deg]F (230 [deg]C).
    (C) For all fuels, wall temperature of the NOX sampleline 
must be maintained between 140 [deg]F (60 [deg]C) and 446[deg]F (230 
[deg]C). An exception is made for the first 4 feet (122cm) of sample 
line from the exhaust duct. The upper temperaturetolerance for this 4 
foot section is waived and only the minimumtemperature specification 
applies.
    (D) For each component (pump, sample line section, filters, etc.)in 
the heated portion of the sampling system that has a separatesource of 
power or heating element, use engineering judgment to locatethe coolest 
portion of that component and monitor the temperature atthat location. 
If several components are within an oven, then only thesurface 
temperature of the component with the largest thermal mass andthe oven 
temperature need be measured.
    (c) Particulate emissions. (1)(i) Schematic drawing. Anexample of a 
sampling system which may be used for particulateemissions testing under 
this subpart is shown in Figure B114-3of this section. All components or 
parts of components that are wettedby the samples gases upstream of the 
filter shall be either chemicallycleaned stainless steel or other inert 
material, for example,polytetrafluoroethylene resin. The use of ``gauge 
savers''or ``protectors'' with nonreactive diaphragms to reducedead 
volumes is permitted. Additional components such as instruments,valves, 
solenoids, pumps, switches, etc. may be employed to provideadditional 
information and coordinate the functions of the componentsystems.
    (ii) The following requirements must be incorporated in eachsystem 
used for testing under this subpart:

[[Page 441]]

    (A) All particulate filters must obtain the sample from thesame 
sample probe located within the exhaust gas extension withinternal split 
to the different filters.
    (B) The wall temperature of the sample transport system from 
theprobe to the dilution tunnel (excluding the first 4 feet of 
theparticulate transfer tube) must be maintained at 375 [deg]F to 
395[deg]F (191 [deg]C to 202 [deg]C).
    (2) Particulate raw sample probe. (i) The sample probe forthe raw 
exhaust shall be a straight, closed end, stainless steel,multi-hole 
probe of approximately 1.25 inch (3.2 cm) diameter. Theinside diameter 
shall not be greater than the inside diameter of thesample line by more 
than 0.1 inches (0.3 cm). The wall thickness ofthe probe shall not be 
greater than 0.06 inches (0.15 cm). The fittingthat attaches the probe 
to the exhaust duct shall be as small aspractical in order to minimize 
heat loss from the probe.
    (ii) All sample collection holes in the probe shall be located soas 
to face away from the direction of flow of the exhaust stream or atmost 
be tangential to the flow of the exhaust stream past the probe(see 
Figure B114-4 of this section). Five holes shall belocated in each 
radial plane along the length of the probe in whichsample holes are 
placed. The spacing of the radial planes for each setof holes in the 
probe must be such that they cover approximately equalcross-sectional 
areas of the exhaust duct. For rectangular ducts, thismeans that the 
sample hole-planes must be equidistant from each other.For circular 
ducts, this means that the distance between the samplehole-planes must 
be decreased with increasing distance from the centerof the duct (see 
Figure B114-4 of this section).

    (Note: Particulate concentrations are expected to vary tosome extent 
as a function of the distance to the duct wall; thus eachset of sample 
holes collects a sample that is representative of across-sectional disk 
at that approximate distance from the wall.)


The spacing between sets of sample holes along the length ofthe probe 
shall be no more than 4 inches (10 cm). The holes should besized such 
that each has approximately the same flow.
    (iii)(A) The particulate sample probe shall be located in theexhaust 
duct on an axis which is directly downstream of, and parallelto the axis 
of the gaseous sample probe. The distance between theprobes shall be 
between 3 inches (7.6 cm) and 6 inches (15.2 cm).Greater spacing is 
allowed for engine testing, where spacing of 3inches (7.6 cm) to 6 
inches (15.2 cm) is not practical.
    (B) If the exhaust duct is circular in cross section, the 
sampleprobe should extend approximately radially across the exhaust 
duct,and approximately through the center of the duct. The sample 
probemust extend across at least 80 percent of the diameter of the duct.
    (C) If the exhaust duct is not circular in cross section, thesample 
probe should extend across the exhaust duct approximatelyparallel to the 
longest sides of the duct, or along the longest axisof the duct which is 
not a diagonal, and through the approximatecenter of the duct. The 
sample probe must extend across at least 80percent of the longest axis 
of the duct which is not a diagonal, andbe approximately parallel to the 
longest sides of the duct.
    (3) Particulate sample transfer line. (i) The maximum insidediameter 
of the particulate emissions sample line shall beapproximately 2.5 
inches (6.4 cm).
    (ii) The sample transfer line shall be heated to maintain a 
walltemperature above 375 [deg]F.
    (4) Dilution tunnel. The flow capacity of the blower movingthe 
mixture of sample and air through the tunnel must be sufficient 
tomaintain the diluted sample stream at a temperature of 125 [deg]F(51.7 
[deg]C) or less, at the sampling zone in the dilution tunneland at the 
sample filter. A single measurement of diluted exhausttemperature is 
required. The temperature shall also be maintained asrequired to prevent 
condensation at any point in the dilution tunnel.A small negative 
pressure is to be maintained in the dilution tunnelby throttling at the 
source of the dilution air, and adjusted asnecessary, sufficient to draw 
sample through the probe and sampletransfer line. Direct sampling of the 
particulate material may takeplace (Figure B114-3 of this section) at 
this point.

[[Page 442]]

    (i)(A) The dilution tunnel shall be:
    (1) Small enough in diameter to cause turbulent flow(Reynolds Number 
greater than 4000) and of sufficient length to causecomplete mixing of 
the exhaust and dilution air;
    (2) 4 inches (10 cm) minimum inside diameter;
    (3) Constructed of electrically conductive material whichdoes not 
react with the exhaust components; and
    (4) Electrically grounded.
    (B) The temperature of the diluted exhaust stream inside of 
thedilution tunnel shall be sufficient to prevent water condensation.
    (C) The engine exhaust shall be directed downstream at the 
pointwhere it is introduced into the dilution tunnel.
    (ii) Dilution air:
    (A) Shall be at a temperature of 68 [deg]F (20 [deg]C) orgreater.
    (B) May be filtered at the dilution air inlet.
    (C) May be sampled to determine background particulate levels,which 
can then be subtracted from the values measured in the exhauststream.
    (D) Shall be sampled to determine the background concentration 
ofCO2.
    (iii) Dilute sample probe and collection system.
    (A) The particulate sample probe in the dilution tunnel shall be:
    (1) Installed facing upstream at a point where the dilutionair and 
exhaust are well mixed (i.e., on the tunnel centerline,approximately 10 
tunnel diameters downstream of the point where theexhaust enters the 
dilution tunnel).
    (2) Sufficiently distant (radially) from other samplingprobes so as 
to be free from the influence of wakes or eddies producedby the other 
probes.
    (3) 0.5 in. (1.3 cm) minimum inside diameter.
    (4) The distance from the sampling tip to the filter holdershall not 
be more than 40 inches (102 cm).
    (5) Designed to minimize the deposition of particulateduring 
transfer (i.e., bends should be as gradual as possible,protrusions (due 
to sensors, etc.) should be smooth and not sudden,etc.).
    (B) The gas meters or flow instrumentation shall be 
locatedsufficiently distant from the tunnel so that the inlet gas 
temperatureremains constant (5 [deg]F (2.8 [deg]C)).Alternately, the temperature of the sample 
may be monitored at the gasmeter, and the measured volume corrected to 
standard conditions.
    (C) Particulate sampling filters. (1) Fluorocarbon-coated glass 
fiber filters or fluorocarbon-based (membrane) filtersare required.
    (2) Particulate filters must have a diameter to maintain theaverage 
face velocity of the sample across the filter between 35 and80 cm/s.
    (3) The dilute exhaust will be simultaneously sampled by apair of 
filters (one primary and one back-up filter) during each phaseof the 
test. The back-up filter shall be located no more than 4 inches(10 cm) 
downstream of the primary filter. The primary and back-upfilters shall 
not be in contact with each other.
    (4) The recommended target loading on a primary 70-mm filter(60 mm 
diameter stain area) is 1.3 milligrams. Equivalent loadings(0.5 mg/1075 
mm\2\ stain area) shall be used as target loadings whenother filter 
sizes are used.
    (D) Diluted CO2 sample collection system.(1) The 
concentrations of CO2 in the dilution airand diluted exhaust 
are determined by pumping a sample into a samplebag (made of a 
nonreactive material) or directly to the analyzer, asshown in Figure 
B114-3 of this section.
    (2) The sample probe for the diluted exhaust shall beinstalled 
facing upstream at a point where the dilution air andexhaust are well 
mixed (i.e., on the tunnel centerline, approximately10 tunnel diameters 
downstream of the point where the exhaust entersthe dilution tunnel). It 
shall also be sufficiently distant (radially)from other sampling probes 
so as to be free from the influence of anywakes or eddies produced by 
the other probes.
    (iv) Other sample flow handling and/or measurement systems may 
beused if shown to yield equivalent results and if approved in advanceby 
the Administrator. (See Appendix IV of this part for guidance.)
    (d) Exhaust system. The exhaust system shall meet thefollowing 
requirements:

[[Page 443]]

    (1) For locomotive testing, the engine exhaust shall berouted 
through an exhaust duct with dimensions equal to or slightlylarger than 
the dimensions of the locomotive exhaust outlet. Theexhaust duct shall 
be designed so as to not significantly affectexhaust backpressure.
    (2) For engine testing, either a locomotive-type or a facility-type 
exhaust system (or a combination system) may be used. The 
exhaustbackpressure for engine testing shall be set between 90 and 
100percent of the maximum backpressure that will result with the 
exhaustsystems of the locomotives in which the engine will be 
used.Backpressure less than 90 percent of the maximum value is 
alsoallowed, provided the backpressure is within 0.07 psi of the 
maximumvalue. The facility-type exhaust system shall meet the 
followingrequirements:
    (i) It must be composed of smooth ducting made of typical in-
usesteel or stainless steel.
    (ii) If an aftertreatment system is employed, the distance fromthe 
exhaust manifold flange(s), or turbocharger outlet to any 
exhaustaftertreatment device shall be the same as in the 
locomotiveconfiguration unless the manufacturer is able to 
demonstrateequivalent performance at another location.
    (iii) If the exhaust system ducting from the exit of the 
engineexhaust manifold or turbocharger outlet to smoke meter exceeds 12 
feet(3.7 m) in length, then all ducting shall be insulated consistent 
withgood engineering practice.
    (iv) For engines designed for more than one exhaust outlet to 
theatmosphere, a specially fabricated collection duct may be used. 
Thecollection duct should be located downstream of the in-
locomotiveexits to the atmosphere. Any potential increase in 
backpressure due tothe use of a single exhaust instead of multiple 
exhausts may becompensated for by using larger than standard exhaust 
systemcomponents in the construction of the collection duct.
    (e) Dilute exhaust sampling for gaseous and particulateemissions. 
(1) Dilution of the exhaust prior to sampling is allowedfor gaseous 
emissions. The equipment and methods used for dilution,sampling and 
analysis shall comply with the requirements of 40 CFRpart 1065, with the 
following exceptions and additional requirements:
    (i) Proportional sampling and heat exchangers are not required;
    (ii) Larger minimum dimensions for the dilution tunnel(s) shall 
bespecified by the Administrator;
    (iii) Other modifications may be made with written approval fromthe 
Administrator.
    (2) Dilution of only a portion of the exhaust is allowed, 
providedthat:
    (i) The fraction of the total exhaust that is diluted isdetermined 
for systems that determine mass emission rates (g/hr) fromthe total 
volume of the diluted sample; or
    (ii) The ratio of raw sample volume to diluted sample volume 
isdetermined for systems that determine mass emission rates (g/hr) 
frommeasured fuel flow rates.

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[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454,July 13, 2005]



Sec. 92.115  Calibrations; frequency and overview.

    (a) Calibrations shall be performed as specified inSec. Sec. 92.116 
through 92.122.
    (b) At least monthly or after any maintenance which could 
altercalibration, perform the periodic calibrations required bySec. 
92.118(a)(2) (certain analyzers may require morefrequent calibration 
depending on the equipment and use). Exception:the water rejection ratio 
and the CO2 rejection ratio onall NDIR analyzers is only 
required to be performed quarterly.
    (c) At least monthly or after any maintenance which could 
altercalibration, calibrate the engine dynamometer flywheel torque 
andspeed measurement transducers, as specified in Sec. 92.116.
    (d) At least monthly or after any maintenance which could 
altercalibration, check the oxides of nitrogen converter efficiency, 
asspecified in Sec. 92.121.
    (e) At least weekly or after any maintenance which could 
altercalibration, check the dynamometer (if used) shaft torque 
feedbacksignal at steady-state conditions by comparing:
    (1) Shaft torque feedback to dynamometer beam load; or
    (2) By comparing in-line torque to armature current; or
    (3) By checking the in-line torque meter with a dead weight perSec. 
92.116(b)(1).
    (f) At least quarterly or after any maintenance which could 
altercalibration, calibrate the fuel flow measurement system as 
specifiedin Sec. 92.107.
    (g) At least annually or after any maintenance which could 
altercalibration, calibrate the electrical output measurement system 
forthe electrical load bank used for locomotive testing.
    (h) Sample conditioning columns, if used in the CO analyzer 
train,should be checked at a frequency consistent with observed column 
lifeor when the indicator of the column packing begins to 
showdeterioration.
    (i) For equipment not addressed in Sec. Sec. 92.116through 92.122 
calibrations shall be performed at least as often asrequired by the 
equipment manufacturer or as necessary according togood practices. The 
calibrations shall be performed in accordance withprocedures specified 
by the equipment manufacturer.
    (j) Where testing is conducted intermittently, calibrations arenot 
required during period in which no testing is conducted, providedthat 
times between the most recent calibrations and the date of anytest does 
not exceed the calibration period. For example, if it hasbeen more than 
one month since the analyzers have been calibrated (asspecified in 
paragraph (c) of this section) then they must becalibrated prior to the 
start of testing.



Sec. 92.116  Engine output measurement system calibrations.

    (a) General requirements for dynamometer calibration. (1)The engine 
flywheel torque and engine speed measurement transducersshall be 
calibrated with the calibration equipment described in thissection.
    (2) The engine flywheel torque feedback signals to the 
cycleverification equipment shall be electronically checked before 
eachtest, and adjusted as necessary.
    (3) Other engine dynamometer system calibrations shall beperformed 
as dictated by good engineering practice.
    (4) When calibrating the engine flywheel torque transducer, anylever 
arm used to convert a weight or a force through a distance intoa torque 
shall be used in a horizontal position (5 
degrees).
    (5) Calibrated resistors may not be used for engine flywheeltorque 
transducer calibration, but may be used to span the transducerprior to 
engine testing.
    (b) Dynamometer calibration equipment--(1) Torquecalibration 
equipment. Two techniques are allowed for torquecalibration. Alternate 
techniques may be used if shown to yieldequivalent accuracies. The NIST 
``true'' value torque isdefined as the torque calculated by taking the 
product of an NISTtraceable weight or force and a sufficiently accurate 
horizontal leverarm distance, corrected for the hanging torque of the 
lever arm.
    (i) The lever-arm dead-weight technique involves the placement 
ofknown weights at a known horizontal distance from the center 
ofrotation of the

[[Page 449]]

torque measuring device. The equipment requiredis:
    (A) Calibration weights. A minimum of six calibrationweights for 
each range of torque measuring device used are required.The weights must 
be approximately equally spaced and each must betraceable to NIST 
weights within 0.1 percent. Laboratories located inforeign countries may 
certify calibration weights to local governmentbureau standards. 
Certification of weight by state government Bureauof Weights and 
Measures is acceptable. Effects of changes ingravitational constant at 
the test site may be accounted for ifdesired.
    (B) Lever arm. A lever arm with a minimum length of 24inches is 
required. The horizontal distance from the centerline of theengine 
torque measurement device to the point of weight applicationshall be 
accurate to within 0.10 inches. The arm must 
bebalanced, or the hanging torque of the arm must be known to 
within0.1 ft-lbs.
    (ii) The transfer technique involves the calibration of a masterload 
cell (i.e., dynamometer case load cell). This calibration can bedone 
with known calibration weights at known horizontal distances, orby using 
a hydraulically actuated precalibrated master load cell. Thiscalibration 
is then transferred to the flywheel torque measuringdevice. The 
technique involves the following steps:
    (A) A master load cell shall be either precalibrated or becalibrated 
per paragraph (b)(1)(i)(A) of this section with knownweights traceable 
to NIST within 0.1 percent, and used with the leverarm(s) specified in 
this section. The dynamometer should be eitherrunning or vibrated during 
this calibration to minimize statichysteresis.
    (B) Transfer of calibration from the case or master load cell tothe 
flywheel torque measuring device shall be performed with thedynamometer 
operating at a constant speed. The flywheel torquemeasurement device 
readout shall be calibrated to the master load celltorque readout at a 
minimum of six loads approximately equally spacedacross the full useful 
ranges of both measurement devices. (Note thatgood engineering practice 
requires that both devices haveapproximately equal useful ranges of 
torque measurement.) The transfercalibration shall be performed in a 
manner such that the accuracyrequirements of Sec. 92.106(b)(1)(ii) for 
the flywheeltorque measurement device readout be met or exceeded.
    (iii) Other techniques may be used if shown to yield 
equivalentaccuracy.
    (2) Speed calibration equipment. A 60 (or greater) toothwheel in 
combination with a common mode rejection frequency counter isconsidered 
an absolute standard for engine or dynamometer speed.
    (c) Dynamometer calibration. (1) If necessary, follow 
themanufacturer's instructions for initial start-up and basic 
operatingadjustments.
    (2) Check the dynamometer torque measurement for each range usedby 
the following:
    (i) Warm up the dynamometer following the equipment 
manufacturer'sspecifications.
    (ii) Determine the dynamometer calibration moment arm. 
Equipmentmanufacturer's data, actual measurement, or the value recorded 
fromthe previous calibration used for this subpart may be used.
    (iii) Calculate the indicated torque (IT) for each calibrationweight 
to be used by:

IT=calibration weight (lb)xcalibration moment arm (ft)

    (iv) Attach each calibration weight specified in paragraph 
(b)(1)(i)(A) of this section to the moment arm at the calibration 
distancedetermined in paragraph (b)(2)(ii)(B) of this section. Record 
thepower measurement equipment response (ft-lb) to each weight.
    (v) For each calibration weight, compare the torque value measuredin 
paragraph (b)(2)(iv) of this section to the calculated torquedetermined 
in paragraph (b)(2)(iii) of this section.
    (vi) The measured torque must be within 2 percent of thecalculated 
torque.
    (vii) If the measured torque is not within 2 percent of 
thecalculated torque, adjust or repair the system. Repeat the steps 
inparagraphs (b)(2)(i) through (b)(2)(vi) of this section with 
theadjusted or repaired system.

[[Page 450]]

    (3) Option. A master load-cell or transfer standard maybe used to 
verify the in-use torque measurement system.
    (i) The master load-cell and read out system must be calibratedwith 
weights at each test weight specified in paragraph (b)(1)(i)(A)of this 
section. The calibration weights must be traceable to within0.1 percent 
of NIST weights.
    (ii) Warm up the dynamometer following the equipmentmanufacturer's 
specifications.
    (iii) Attach the master load-cell and loading system.
    (iv) Load the dynamometer to a minimum of 6 equally spaced 
torquevalues as indicated by the master load-cell for each in-use 
rangeused.
    (v) The in-use torque measurement must be within 2 percent of 
thetorque measured by the master system for each load used.
    (vi) If the in-use torque is not within 2 percent of the 
mastertorque, adjust or repair the system. Repeat steps in paragraphs 
(b)(3)(ii) through (b)(3)(vi) of this section with the adjusted or 
repairedsystem.
    (4) The dynamometer calibration must be completed within 2 hoursfrom 
the completion of the dynamometer warm-up.
    (d) Electrical load banks. Equipment used to measure theelectrical 
power output dissipated by electrical load banks shall becalibrated as 
frequently as required by Sec. 92.115, using acalibration procedure 
that is consistent with good engineeringpractice and approved by the 
Administrator.



Sec. 92.117  Gas meter or flow instrumentation calibration, particulatemeasurement.

    (a) Sampling for particulate emissions requires the use of gasmeters 
or flow instrumentation to determine flow through theparticulate 
filters. These instruments shall receive initial andmonthly calibrations 
as follows:
    (1)(i) Install a calibration device in series with the instrument.A 
critical flow orifice, a bellmouth nozzle, or a laminar flow elementor 
an NIST traceable flow calibration device is required as thestandard 
device.
    (ii) The flow system should be checked for leaks between 
thecalibration and sampling meters, including any pumps that may be 
partof the system, using good engineering practice.
    (2) Flow air through the calibration system at the sample flowrate 
used for particulate testing and at the backpressure which occursduring 
the sample test.
    (3) When the temperature and pressure in the system havestabilized, 
measure the indicated gas volume over a time period of atleast five 
minutes or until a gas volume of at least 1percent 
accuracy can be determined by the standard device. Record thestabilized 
air temperature and pressure upstream of the instrument andas required 
for the standard device.
    (4) Calculate air flow at standard conditions as measured by boththe 
standard device and the instrument(s).
    (5) Repeat the procedures of paragraphs (a)(2) through (4) of 
thissection using at least two flow rates which bracket the 
typicaloperating range.
    (6) If the air flow at standard conditions measured by theinstrument 
differs by 1.0 percent of the maximum 
operatingrange or 2.0 percent of the point 
(whichever is smaller),then a correction shall be made by either of the 
following twomethods:
    (i) Mechanically adjust the instrument so that it agrees with 
thecalibration measurement at the specified flow rates using the 
criteriaof paragraph (a)(6) of this section; or
    (ii) Develop a continuous best fit calibration curve for 
theinstrument (as a function of the calibration device flow 
measurement)from the calibration points to determine corrected flow. The 
points onthe calibration curve relative to the calibration device 
measurementsmust be within 1.0 percent of the 
maximum operating range of2.0 percent of the point 
through the filter.
    (b) Other systems. A bell prover may be used to calibratethe 
instrument if the procedure outlined in ANSI B109.1-1992(incorporated by 
reference at Sec. 92.5) is used. Priorapproval by the Administrator is 
not required to use the bell prover.

[[Page 451]]



Sec. 92.118  Analyzer checks and calibrations.

    (a)(1) Prior to initial use and after major repairs, bench checkeach 
analyzer for compliance with the specifications ofSec. 92.109.
    (2) The periodic calibrations are required:
    (i) Leak check of the pressure side of the system (see paragraph(b) 
of this section). If the option described in paragraph (b)(2) ofthis 
section is used, a pressure leak check is not required.
    (ii) Calibration of all analyzers (seeSec. Sec. 92.119 through 
92.122).
    (iii) Check of the analysis system response time (see paragraph(c) 
of this section). If the option described in paragraph (c)(2) ofthis 
section is used, a response time check is not required.
    (b) Leak checks--(1) Vacuum side leak check. (i)Any location within 
the analysis system where a vacuum leak couldaffect the test results 
must be checked.
    (ii) The maximum allowable leakage rate on the vacuum side is 
0.5percent of the in-use flow rate for the portion of the system 
beingchecked. the analyzer flows and bypass flows may be used to 
estimatethe in-use flow rates.
    (iii) The sample probe and the connection between the sample 
probeand valve V2 may be excluded from the leak check.
    (2) Pressure side leak check. (i) The maximum allowableleakage rate 
on the pressure side in 5 percent of the in-use flowrate.
    (ii) Option: If the flow rate for each flow meter is equal to 
orgreater than the flow rate recorded in paragraph (c)(2)(i) of 
thissection, then a pressure side leak check is not required.
    (c) System response time; check procedure. (1) After anymajor change 
in the system, check the system response time by thefollowing procedure:
    (i) Stabilize the operating temperature of the sample line, 
samplepump, and heated filters.
    (ii) Introduce an HC span gas into the sampling system at thesample 
probe or valve V2 at atmospheric pressure. Simultaneously,start the time 
measurement.
    (iii) When the HC instrument response is 95 percent of the spangas 
concentration used, stop the time measurement.
    (iv) If the elapsed time is more than 20.0 seconds, make 
necessaryadjustments.
    (v) Repeat with the CO, CO2, and 
NOXinstruments and span gases.
    (2) Option. If the following parameters are determined, theinitial 
system response time may be generally applied to futurechecks:
    (i) Analyzer and bypass flow rates. (A) Determine byexperimentation 
the minimum analyzer and bypass flow ratesindividually and in 
combination that will produce a response time asclose as possible to 
20.0 seconds per paragraph (c)(1) of thissection.
    (B) Record the highest minimum flow rate for each flow meter 
asdetermined in paragraph (c)(2)(i)(A) of this section.
    (ii) Capillary flow analyzers. This procedure is applicableonly to 
analyzers that have sample capillaries such as the HFID and CLanalyzers. 
It is also assumed that the system has sample/span valvesthat perform 
the function of valves V9 and V13 in.
    (A) Operate the analyzer(s) at the in-use capillary pressure.
    (B) Adjust the bypass flow rate to the flow rate recorded 
inparagraph (c)(2)(i)(B) of this section.
    (C) Measure and record the response time from the sample/
spanvalve(s) per paragraph (c)(1) of this section.
    (D) The response time required by paragraph (c)(2)(ii)(C) of 
thissection can be determined by switching from the ``sample''position 
to the ``span'' position of the sample/span valveand observing the 
analyzer response on a chart recorder. Normally, the``sample'' position 
would select a ``roomair'' sample and the ``span'' position would 
selecta span gas.
    (E) Adjust the bypass flow rate to the normal in-use value.
    (F) Measure and record the response time from the sample/
spanvalve(s) per paragraph (c)(1) of this section.
    (G) Determine the slowest response time (step in paragraph 
(c)(2)(ii)(C) of this section or step in paragraph (c)(2)(ii)(D) of 
thissection) and add 2 seconds to it.

[[Page 452]]



Sec. 92.119  Hydrocarbon analyzer calibration.

    The HFID hydrocarbon analyzer shall receive the following initialand 
periodic calibration:
    (a) Initial and periodic optimization of detector response.Prior to 
introduction into service and at least annually thereafter,the HFID 
hydrocarbon analyzer shall be adjusted for optimumhydrocarbon response. 
Alternate methods yielding equivalent resultsmay be used, if approved in 
advance by the Administrator.
    (1) Follow good engineering practices for initial instrumentstart-up 
and basic operating adjustment using the appropriate fuel(see Sec. 
92.112) and zero-grade air.
    (2) Optimize on the most common operating range. Introduce intothe 
analyzer a propane-in-air mixture with a propane concentrationequal to 
approximately 90 percent of the most common operating range.
    (3) HFID optimization is performed:
    (i) According to the procedures outlined in Society of 
AutomotiveEngineers (SAE) paper No. 770141, ``Optimization of 
FlameIonization Detector for Determination of Hydrocarbons in 
DilutedAutomobile Exhaust'', author, Glenn D. Reschke (incorporated 
byreference at Sec. 92.5); or
    (ii) According to the following procedures:
    (A) If necessary, follow manufacturer's instructions forinstrument 
start-up and basic operating adjustments.
    (B) Set the oven temperature 5 [deg]C hotter than the 
requiredsample-line temperature. Allow at least one-half hour after the 
ovenhas reached temperature for the system to equilibrate.
    (C) Initial fuel flow adjustment. With the fuel and air-flowrates 
set at the manufacturer's recommendations, introduce a 350 ppmC75 ppmC span gas to the detector. Determine the response 
at agiven fuel flow from the difference between the span-gas response 
andthe zero-gas response. Incrementally adjust the fuel flow above 
andbelow the manufacturer's specification. Record the span and 
zeroresponse at these fuel flows. A plot of the difference between 
thespan and zero response versus fuel flow will be similar to the 
oneshown in Figure B119-1 of this section. Adjust the fuel-flowrate to 
the rich side of the curve, as shown. This is initial flow-rate setting 
and may not be the final optimized flow rate.
    (D) Oxygen interference optimization. Choose a range wherethe oxygen 
interference check gases (see Sec. 92.112) willfall in the upper 50 
percent. Conduct this test with the oventemperature set as required. 
Oxygen interference check gasspecifications are found in Sec. 92.112.
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21-percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5percent of 
full scale repeat paragraphs (a)(3)(ii)(D) (1) and(2) of this section.
    (4) Introduce the 5 percent and 10 percent oxygeninterference check 
gases.
    (5) Recheck the zero response. If it has changed more1 percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference(%O2I) 
for each mixture in step in paragraph (a)(3)(ii)(D)(4) of this section.

Percent O2I=((B-Analyzer response (ppmC))/B)x(100)
Analyzer response=((A)/(Percent of full-scale analyzer responsedue to 
    A))x(Percent of full-scale analyzer response due to B)

Where:

A=hydrocarbon concentration (ppmC) of the span gas used in step 
inparagraph (a)(3)(ii)(D)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interferencecheck gases 
used in step in paragraph (a)(3)(ii)(D)(4) of thissection.

    (7) The percent of oxygen interference (%O2I)must be less 
than 3.0 percent for all required 
oxygeninterference check gases prior to testing.
    (8) If the oxygen interference is greater than thespecifications, 
incrementally adjust the air flow above and below themanufacturer's 
specifications, repeating paragraphs (a)(3)(ii)(D)(1) through (7) of 
this section for each flow.
    (9) If the oxygen interference is greater than thespecification 
after adjusting the air flow, vary the fuel flow andthereafter the 
sample flow, repeating paragraphs (a)(3)(ii)(D)(1) through (7) of this 
section for each new setting.

[[Page 453]]

    (10) If the oxygen interference is still greater thanthe 
specifications, repair or replace the analyzer, FID fuel, orburner air 
prior to testing. Repeat this section with the repaired orreplaced 
equipment or gases.
    (E) Linearity check. For each range used, check linearity asfollows:
    (1) With the fuel flow, air flow and sample flow adjust tomeet the 
oxygen interference specification, zero the analyzer.
    (2) Span the analyzer using a calibration gas that willprovide a 
response of approximately 90 percent of full-scaleconcentration.
    (3) Recheck the zero response. If it has changed more than0.5 
percent of full scale, repeat steps in paragraphs (a)(3)(ii)(E)(1) and 
(2) of this seciton.
    (4) Record the response of calibration gases having 
nominalconcentrations of 30, 60, and 90 percent of full-scale 
concentration.It is permitted to use additional concentrations.
    (5) Perform a linear least square regression on the datagenerated. 
Use an equation of the form y = mx, where x is the actualchart 
deflection and y is the concentration.
    (6) Use the equation z = y/m to find the linear chartdeflection (z) 
for each calibration gas concentration (y).
    (7) Determine the linearity (%L) for each calibration gasby:

Percent L=(100)(z-x)/(Full-scale linear chart deflection)

    (8) The linearity criterion is met if the %L is less than2 percent for each data point generated. Below 40 ppmC 
thelinearity criterion may be expanded to 4 
percent. For eachemission test, a calibration curve of the form y = mx 
is to be used.The slope (m) is defined for each range by the spanning 
process.
    (9) If the %L for any point exceeds the specifications instep in 
paragraph (a)(3)(ii)(E)(8) of this section, the airfuel, and sample-flow 
rates may be varied within the boundaries of theoxygen interference 
specifications.
    (10) If the %L for any data point still exceeds thespecifications, 
repair or replace the analyzer, FID fuel, burner air,or calibration 
bottles prior to testing. Repeat the procedures of thissection with the 
repaired or replaced equipment or gases.
    (F) Optimized flow rates. The fuel-flow rate, air-flow rateand 
sample-flow rate and sample-flow rate are defined as``optimized'' at 
this point.
    (iii) Alternative procedures may be used if approved in advance 
bythe Administrator.
    (4) After the optimum flow rates have been determined they 
arerecorded for future reference.
    (b) Initial and periodic calibration. Prior to introductioninto 
service and monthly thereafter, the HFID hydrocarbon analyzershall be 
calibrated on all normally used instrument ranges. Use thesame flow rate 
and pressures as when analyzing samples. Calibrationgases shall be 
introduced directly at the analyzer.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with zero-grade air.
    (3) Calibrate on each used operating range with propane-in-
aircalibration gases having nominal concentrations of 15, 30, 45, 60, 
75and 90 percent of that range. For each range calibrated, if 
thedeviation from a least-squares best-fit straight line is 2 percent 
orless of the value at each data point, concentration values may 
becalculated by use of single calibration factor for that range. If 
thedeviation exceeds 2 percent at any point, the best-fit non-
linearequation which represents the data to within 2 percent of each 
testpoint shall be used to determine concentration.

[[Page 454]]

                         Figure to Sec. 92.119
[GRAPHIC] [TIFF OMITTED] TR16AP98.005


[[Page 455]]





Sec. 92.120  NDIR analyzer calibration and checks.

    (a) NDIR water rejection ratio check. (1) Zero and span theanalyzer 
on the lowest range that will be used.
    (2) Introduce a saturated mixture of water and zero gas at 
roomtemperature directly to the analyzer.
    (3) Determine and record the analyzer operating pressure (GP) 
inabsolute units in Pascal. Gauges G3 and G4 may be used if the 
valuesare converted to the correct units.
    (4) Determine and record the temperature of the zero-gas mixture.
    (5) Record the analyzers' response (AR) in ppm to the saturatedzero-
gas mixture.
    (6) For the temperature recorded in paragraph (a)(4) of thissection, 
determine the saturation vapor pressure.
    (7) Calculate the water concentration (Z) in the mixture from:

Z=(PWB/GP)(10\6\)

    (8) Calculate the water rejection ratio (WRR) from:

WRR=(Z/AR)

    (b) NDIR CO2 rejection ratio check. (1)Zero and span the 
analyzer on the lowest range that will be used.
    (2) Introduce a CO2 calibration gas of at least 10percent 
CO2 or greater to the analyzer.
    (3) Record the CO2 calibration gas concentration inppm.
    (4) Record the analyzers' response (AR) in ppm to theCO2 
calibration gas.
    (5) Calculate the CO2 rejection ratio(CO2RR) 
from:

CO2RR=(ppm CO2)/AR

    (c) NDIR analyzer calibration. (1) Detector optimization. 
Ifnecessary, follow the manufacturer's instructions for initial start-
upand basic operating adjustments.
    (2) Calibration curve. Develop a calibration curve for each 
rangeused as follows:
    (i) Zero the analyzer.
    (ii) Span the analyzer to give a response of approximately 90percent 
of full-scale chart deflection.
    (iii) Recheck the zero response. If it has changed more than 
0.5percent of full scale, repeat steps in paragraphs (c)(2)(i) and 
(c)(2)(ii) of this section.
    (iv) Record the response of calibration gases having 
nominalconcentrations of 15, 30, 45, 60, 75, and 90 percent of full-
scaleconcentration.
    (v) Generate a calibration curve. The calibration curve shall beof 
fourth order or less, have five or fewer coefficients, and be ofthe form 
of equation (1) or (2). Include zero as a data point.Compensation for 
known impurities in the zero gas can be made to thezero-data point. The 
calibration curve must fit the data points within2 percent of point or 1 
percent of full scale, whichever is less.Equations (1) and (2) follow:

y = Ax\4\+Bx\3\+Cx\2\+Dx+E (1)
y = x/(Ax\4\+Bx\3\+Cx\2\+Dx+E) (2)

where:

y = concentration.
x = chart deflection.

    (vi) Option. A new calibration curve need not be generated if:
    (A) A calibration curve conforming to paragraph (c)(2)(v) of 
thissection exists;
    (B) The responses generated in paragraph (c)(2)(iv) of thissection 
are within 1 percent of full scale or 2 percent of point,whichever is 
less, of the responses predicted by the calibration curvefor the gases 
used in paragraph (c)(2)(iv) of this section.
    (vii) If multiple range analyzers are used, only the lowest 
rangemust meet the curve fit requirements below 15 percent of full 
scale.
    (3) If any range is within 2 percent of being linear a 
linearcalibration may be used. To determine if this criterion is met:
    (i) Perform a linear least-square regression on the datagenerated. 
Use an equation of the form y=mx, where x is the actualchart deflection 
and y is the concentration.
    (ii) Use the equation z=y/m to find the linear chart deflection(z) 
for each calibration gas concentration (y).
    (iii) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale chart deflection)

    (iv) The linearity criterion is met if the %L is less than2 percent for each data point generated. For each 
emissiontest, a calibration curve of the

[[Page 456]]

form y=mx is to be used. Theslope (m) is defined for each range by the 
spanning process.



Sec. 92.121  Oxides of nitrogen analyzer calibration and check.

    (a) Quench checks; NOX analyzer. (1)Perform the reaction 
chamber quench check for each model of highvacuum reaction chamber 
analyzer prior to initial use.
    (2) Perform the reaction chamber quench check for each newanalyzer 
that has an ambient pressure or ``soft vacuum''reaction chamber prior to 
initial use. Additionally, perform thischeck prior to reusing an 
analyzer of this type any time any repairscould potentially alter any 
flow rate into the reaction chamber. Thisincludes, but is not limited 
to, sample capillary, ozone capillary,and if used, dilution capillary.
    (3) Quench check as follows:
    (i) Calibrate the NOX analyzer on the lowest rangethat 
will be used for testing.
    (ii) Introduce a mixture of CO2 calibration gas 
andNOX calibration gas to the CL analyzer. Dynamic 
blendingmay be used to provide this mixture. Dynamic blending may 
beaccomplished by analyzing the CO2 in the mixture. Thechange 
in the CO2 value due to blending may then be usedto determine 
the true concentration of the NOX in themixture. The 
CO2 concentration of the mixture shall beapproximately equal 
to the highest concentration experienced duringtesting. Record the 
response.
    (iii) Recheck the calibration. If it has changed more than1 percent of full scale, recalibrate and repeat the 
quenchcheck.
    (iv) Prior to testing, the difference between the 
calculatedNOX response and the response of NOX in 
thepresence of CO2 (step in paragraph (a)(3)(ii) of 
thissection must not be greater than 3.0 percent of full-scale. 
Thecalculated NOX response is based on the 
calibrationperformed in step in paragraph (a)(3)(i) this section.
    (b) Oxides of nitrogen analyzer calibration. (1) Every 30days, 
perform a converter-efficiency check (see paragraph (b)(2) ofthis 
section) and a linearity check (see paragraph (b)(3) of thissection).
    (2) Converter-efficiency check. The apparatus described 
andillustrated in Figure B121-1 of this section is to be used 
todetermine the conversion efficiency of devices that 
convertNO2 to NO. The following procedure is to be used 
indetermining the values to be used in the equation below:
    (i) Follow the manufacturer's instructions for instrument startupand 
operation.
    (ii) Zero the oxides of nitrogen analyzer.
    (iii) Connect the outlet of the NOX generator to 
thesample inlet of the oxides of nitrogen analyzer which has been set 
tothe most common operating range.
    (iv) Introduce into the NOX generator-analyzer systema 
span gas with a NO concentration equal to approximately 80 percentof the 
most common operating range. The NO2 content of thegas 
mixture shall be less than 5 percent of the NOXconcentration.
    (v) With the oxides of nitrogen analyzer in the NO Mode, recordthe 
concentration of NO indicated by the analyzer.
    (vi) Turn on the NOX generator O2 (or 
air)supply and adjust the O2 (or air) flow rate so that the 
NOindicated by the analyzer is about 10 percent less than indicated 
instep in paragraph (b)(2)(v) of this section. Record the 
concentrationof NO in this NO+O2 mixture.
    (vii) Switch the NOX generator to the generation modeand 
adjust the generation rate so that the NO measured on the analyzeris 20 
percent of that measured in step in paragraph (b)(2)(v) of thissection. 
There must be at least 10 percent unreacted NO at this point.Record the 
concentration of residual NO.
    (viii) Switch the oxides of nitrogen analyzer to theNOX 
mode and measure total NOX. Record thisvalue.
    (ix) Switch off the NOX generation, but maintain gasflow 
through the system. The oxides of nitrogen analyzer will indicatethe 
total NOX in the NO+O2 mixture. Recordthis value.
    (x) Turn off the NOX generator O2 (or 
air)supply. The analyzer will now indicate the total NOX 
inthe original NO

[[Page 457]]

in N2 mixture. This value should beno more than 5 percent 
above the value indicated in step in paragraph(b)(2)(iv) of this 
section.
    (xi) Calculate the efficiency of the NOX converter 
bysubstituting the concentrations obtained into the following equation:
    (A) Percent Efficiency=(1+(a-b)/(c-d))(100)

where:

a=concentration obtained in paragraph (b)(2)(viii) of thissection.
b=concentration obtained in paragraph (b)(2)(ix) of this section.
c=concentration obtained in paragraph (b)(2)(vi) of this section.
d=concentration obtained in paragraph (b)(2)(vii) of this section.

    (B) The efficiency of the converter shall be greater than 90percent. 
Adjustment of the converter temperature may be necessary tomaximize the 
efficiency. If the converter does not meet theconversion-efficiency 
specifications, repair or replace the unit priorto testing. Repeat the 
procedures of this section with the repaired ornew converter.
    (3) Linearity check. For each range used, check linearity asfollows:
    (i) With the operating parameters adjusted to meet the 
converterefficiency check and the quench checks, zero the analyzer.
    (ii) Span the analyzer using a calibration gas that will give 
aresponse of approximately 90 percent of full-scale concentration.
    (iii) Recheck the zero response. If it has changed more than 
0.5percent of full scale, repeat steps in paragraphs (b)(3)(i) and 
(b)(3)(ii) of this section.
    (iv) Record the response of calibration gases having 
nominalconcentrations of 30, 60 and 90 percent of full-scale 
concentration.It is permitted to use additional concentrations.
    (v) Perform a linear least-square regression on the datagenerated. 
Use an equation of the form y=mx where x is the actualchart deflection 
and y is the concentration.
    (vi) Use the equation z=y/m to find the linear chart deflection(z) 
for each calibration gas concentration (y).
    (vii) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale chart deflection)

    (viii) The linearity criterion is met if the %L is less than2 percent of each data point generated. For each 
emissiontest, a calibration curve of the form y=mx is to be used. The 
slope(m) is defined for each range by the spanning process.
    (ix) If the %L exceeds 2 percent for any data 
pointgenerated, repair or replace the analyzer or calibration bottles 
priorto testing. Repeat the procedures of this section with the repaired 
orreplaced equipment or gases.
    (x) Perform a converter-efficiency check (see paragraph (b)(2) 
ofthis section).
    (xi) The operating parameters are defined as``optimized'' at this 
point.
    (4) Converter checking gas. If the converter quick-check procedureis 
to be employed, paragraph (b)(5) of this section, a converterchecking 
gas bottle must be named. The following naming procedure mustoccur after 
each converter efficiency check, paragraph (b)(2) of thissection.
    (i) A gas bottle with an NO2 concentration equal 
toapproximately 80 percent of the most common operation range shall 
bedesignated as the converter checking gas bottle. Its NO 
concentrationshall be less than 25 percent of its NO2 
concentration, ona volume basis.
    (ii) On the most common operating range, zero and span theanalyzer 
in the NOX mode. Use a calibration gas with aconcentration 
equal to approximately 80 percent of the range forspanning.
    (iii) Introduce the converter checking gas. Analyze and 
recordconcentrations in both the NOX mode (X) and NO mode 
(Y).
    (iv) Calculate the concentration of the converter checking gasusing 
the results from step in paragraph (b)(4)(iii) of this sectionand the 
converter efficiency from paragraph (b)(2) of this section asfollows:

Concentration=(((X-Y)(100))/Efficiency)+Y

    (5) Converter quick-check.
    (i) Span the analyzer in the normal manner (NOX mode)for 
the most common operating range.

[[Page 458]]

    (ii) Analyze the converter checking gas in theNOX mode, 
record the concentration.
    (iii) Compare the observed concentration with the 
concentrationassigned under the procedure in paragraph (b)(4) of this 
section. Ifthe observed concentration is equal to or greater than 90 
percent ofthe assigned concentration, the converter operation is 
satisfactory.
    (c) Initial and periodic calibration. Prior to itsintroduction into 
service and monthly thereafter, the chemiluminescentoxides of nitrogen 
analyzer shall be calibrated on all normally usedinstrument ranges. Use 
the same flow rate as when analyzing samples.Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air orzero-
grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations of 15,30, 
45, 60, 75 and 90 percent of that range. For each rangecalibrated, if 
the deviation from a least-squares best-fit straightline is 2 percent or 
less of the value at each data point,concentration values may be 
calculated by use of a single calibrationfactor for that range. If the 
deviation exceeds 2 percent at anypoint, the best-fit non-linear 
equation which represents the data towithin 2 percent of each test point 
shall be used to determineconcentration.
    (d) If a stainless steel NO2 to NO converter is 
used,condition all new or replacement converters. The conditioning 
consistsof either purging the converter with air for a minimum of 4 
hours oruntil the converter efficiency is greater than 90 percent. 
Theconverter must be at operational temperature while purging. Do not 
usethis procedure prior to checking converter efficiency on in-
useconverters.

[[Page 459]]

                         Figure to Sec. 92.121
[GRAPHIC] [TIFF OMITTED] TR16AP98.006


[[Page 460]]





Sec. 92.122  Smoke meter calibration.

    The smokemeter shall be checked according to the followingprocedure 
prior to each test:
    (a) The zero control shall be adjusted under conditions of``no 
smoke'' to give a recorder or data collectionequipment response of zero;
    (b) Calibrated neutral density filters having approximately 10,20, 
and 40 percent opacity shall be employed to check the linearity ofthe 
instrument. The filter(s) shall be inserted in the light 
pathperpendicular to the axis of the beam and adjacent to the opening 
fromwhich the beam of light from the light source emanates, and 
therecorder response shall be noted. Filters with exposed filtering 
mediashould be checked for opacity every six months; all other 
filtersshall be checked every year, using NIST or equivalent 
referencefilters. Deviations in excess of 1 percent of the nominal 
opacityshall be corrected.



Sec. 92.123  Test procedure; general requirements.

    (a) The locomotive/locomotive engine test procedure is designed 
todetermine the brake specific emissions of hydrocarbons (HC, total 
ornon-methane as applicable), total hydrocarbon equivalent (THCE) 
andaldehydes (as applicable), carbon monoxide (CO), oxides of 
nitrogen(NOX), and particulates, and the opacity of 
smokeemissions. The test procedure consists of measurements of 
brakespecific emissions and smoke opacity at each throttle position and 
ofmeasurements of smoke opacity during each change in throttle 
positionas engine power is increased. If less than 2 percent of the 
totalexhaust flow is removed for gaseous and particulate sampling 
innotches 1 through 8, and if less than 4 percent of the total 
exhaustflow is removed for gaseous and particulate sampling at idle 
anddynamic brake, all measurements of gaseous, particulate and 
smokeemissions may be performed during one test sequence. If more than 
2percent, or 4 percent as applicable, of the total exhaust is removedfor 
gaseous and particulate sampling, measurements of gaseous, 
andparticulate emissions are performed during one test sequence, and 
asecond test sequence is performed for the measurement of smoke.
    (1) In the raw exhaust sampling procedure, sample is 
collecteddirectly from the exhaust stream during each throttle 
setting.Particulates are collected on filters following dilution with 
ambientair of another raw exhaust sample. The fuel flow rate for 
eachthrottle setting is measured.
    (2) For locomotives with multiple exhaust stacks, smoke testing 
isrequired for only one of the exhaust stacks provided the 
followingconditions are met:
    (i) The stack that is not tested is not visibly smokier than 
thestack that is tested, and
    (ii) None of the measured opacity values for the stack tested 
aregreater than three-quarters of the level allowed by any of 
theapplicable smoke standards.
    (b) The test consists of prescribed sequences of engine 
operatingconditions (see Sec. Sec. 92.124 and 92.126) to beconducted 
either on a locomotive; or with the engine mounted on anengine 
dynamometer, or attached to a locomotive alternator/generator.
    (1) Locomotive testing. (i) The electrical power outputproduced by 
the alternator/generator at each throttle setting isrecorded as 
measurements of either the wattmeter or the outputvoltage, phase angle, 
and current flow through the electricalresistance bank.
    (ii) The locomotive fuel supply system shall be disconnected and 
asystem capable of measuring the net rate at which fuel is supplied 
tothe engine (accounting for fuel recycle) shall be connected.
    (2) Engine testing. (i) When the test is performed using 
adynamometer, engine torque and rpm shall be recorded during 
eachthrottle setting.
    (ii) The complete engine shall be tested, with all emissioncontrol 
devices, and charge air cooling equipment installed andfunctioning.
    (iii) On air-cooled engines, the engine cooling fan shall 
beinstalled.
    (iv) Additional accessories (e.g., air compressors) shall 
beinstalled or their loading simulated if typical of the in-
useapplication. In the case of simulated accessory loadings, 
themanufacturer shall make available to the Administrator 
documentationwhich

[[Page 461]]

shows that the simulated loading is representative of in-use operation. 
Power for accessories necessary to operate the engine(such as fuel 
pumps) shall be treated as parasitic losses and wouldnot be included in 
the engine power output for purposes of calculatingbrake specific 
emissions.
    (v) The engine may be equipped with a production type starter.
    (vi) Means of engine cooling shall be used which will maintain 
theengine operating temperatures (e.g., temperatures of intake 
airdownstream of charge air coolers, oil, water, etc.) at 
approximatelythe same temperature as would occur in a locomotive at each 
test pointunder the equivalent ambient conditions. In the case of engine 
intakeair after compression and cooling in the charge air cooler(s), 
thetemperature of the air entering the engine shall be within 5[deg]F, at each test point, of the typical temperatures 
occurring inlocomotive operations under ambient conditions represented 
by thetest. Auxiliary fan(s) may be used to maintain engine cooling 
duringoperation on the dynamometer. Rust inhibitors and 
lubricationadditives may be used, up to the levels recommended by the 
additivemanufacturer. If antifreeze is to be used in the 
locomotiveapplication, antifreeze mixtures and other coolants typical of 
thoseapproved for use in the locomotive may be used.
    (vii) The provisions of paragraph (b)(1)(i) of this section applyto 
engine testing using a locomotive alternator/generator instead of 
adynamometer.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July13, 2005]



Sec. 92.124  Test sequence; general requirements.

    (a) Air temperature. (1) The temperature of dilution air forthe 
particulate sample dilution tunnel shall comply with therequirements of 
Sec. 92.114 throughout the test sequence.
    (2) For the testing of locomotives and engines, the ambient 
(testcell or out-of-door) air temperature, the temperature of the 
engineintake air, and the temperature of the air which provides cooling 
forthe engine charge air cooling system shall be between 45 [deg]F 
(7[deg]C) and 105 [deg]F (41 [deg]C) throughout the test 
sequence.Manufacturers and remanufacturers may test at higher 
temperatureswithout approval from the Administrator, but no corrections 
areallowed for the deviations from test conditions.
    (b) For the testing of locomotives and engines, the 
atmosphericpressure shall be between 31.0 inches Hg and 26.0 inches Hg 
throughoutthe test sequence. Manufacturers and remanufacturers may test 
at lowerpressures without approval from the Administrator, but no 
correctionsare allowed for the deviations from test conditions.
    (c) No control of humidity is required for ambient air, engineintake 
air or dilution air.
    (d) Flow restrictions--(1) Locomotive testing.Restrictions to the 
flow of air into the engine and of exhaust out ofthe engine shall be 
those inherent to the locomotive. No adjustmentsor changes shall be made 
to these parameters. The temperature of theinlet fuel to the engine 
shall not exceed 125 [deg]F.
    (2) Engine testing. (i) Air inlet and exhaust restrictionsshall be 
set to represent the average restrictions which would be seenin use in a 
representative application.
    (ii) Inlet depression and exhaust backpressure shall be set withthe 
engine operating at rated speed and maximum power, i.e., throttlenotch 
8.
    (iii) The locations at which the inlet depression and 
exhaustbackpressure are measured shall be specified by the manufacturer 
orremanufacturer.
    (iv) The settings shall be made during the preconditioning.
    (e) Pre-test engine measurements (e.g., idle and throttle 
notchspeeds, fuel flows, etc.), pre-test engine performance checks 
(e.g.,verification of engine power, etc.) and pre-test system 
calibrations(e.g., inlet and exhaust restrictions, etc.) can be done 
during enginepreconditioning, or at the manufacturer's convenience 
subject to therequirements of good engineering practice.
    (f) The required test sequence is described in Table B124-1of this 
section, as follows:

[[Page 462]]



                                                  Table B124-1
----------------------------------------------------------------------------------------------------------------
                               Testsequence for locomotives and locomotive engines
-----------------------------------------------------------------------------------------------------------------
                                                                                               Power, and fuel
           Mode No.                Notchsetting      Time in notch     Emissions measured        consumption
                                                                               \2\                measured
----------------------------------------------------------------------------------------------------------------
Warmup........................  Notch 8..........  5 1 min.
Warmup........................  Lowest Idle......  15 min maximum     None................  None
                                                    (after engine
                                                    speed
                                                    reacheslowest
                                                    idle speed).
1a............................  Low Idle\1\......  6 min minimum....  All.................  Both
1.............................  Normal Idle......  6 min minimum....  All.................  Both
2.............................  Dynamic Brake\1\.  6 min minimum....  All.................  Both
3.............................  Notch 1..........  6 min minimum....  All.................  Both
4.............................  Notch 2..........  6 min minimum....  All.................  Both
5.............................  Notch 3..........  6 min minimum....  All.................  Both
6.............................  Notch 4..........  6 min minimum....  All.................  Both
7.............................  Notch 5..........  6 min minimum....  All.................  Both
8.............................  Notch 6..........  6 min minimum....  All.................  Both
9.............................  Notch 7..........  6 min minimum....  All.................  Both
10............................  Notch 8..........  15 min minimum...  All.................  Both
----------------------------------------------------------------------------------------------------------------
\1\ Omit if not so equipped.
\2\ The EPA test sequence for locomotives and locomotiveengines may be performed once, with gaseous, particulate
  and smokemeasurements performed simultaneously, or it may be performed twicewith gaseous, and particulate
  measurements performed during one testsequence and smoke measurements performed during the other testsequence.
  The minimum time in notch is three minutes for testsequences in which only smoke is measured.


[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July13, 2005]



Sec. 92.125  Pre-test procedures and preconditioning.

    (a) Locomotive testing. (1) Determine engine lubricating oiland 
coolant levels and fill as necessary to manufacturers recommendedfull 
levels.
    (2) Connect fuel supply system and purge as necessary; determinethat 
the fuel to be used during emission testing is in compliance withthe 
specifications of Sec. 92.113.
    (3) Install instrumentation, engine loading equipment and 
samplingequipment as required.
    (4) Operate the engine until it has reached the specifiedoperating 
temperature.
    (b) Engine testing. (1) Determine engine lubricating oillevel and 
fill as necessary to manufacturers recommended full level.
    (2)(i) Connect fuel supply system and purge as necessary;determine 
that the fuel to be used during emission testing is incompliance with 
the specifications of Sec. 92.113.
    (ii) Connect engine cooling system.
    (3) Install instrumentation, and sampling equipment as 
required.Couple the engine to the dynamometer or locomotivealternator/
generator.
    (4) Start cooling system.
    (5) Operate the engine until it has reached the specifiedoperating 
temperature.
    (6) Establish that the temperature of intake air entering theengine 
after compression and cooling in the charge air cooler(s), ateach test 
point, is within 5 [deg]F of the temperatureswhich 
occur in locomotive operations at the ambient temperaturerepresented by 
the test.
    (c) Both locomotive and engine testing. (1) Allow a minimumof 30 
minutes warm-up in the stand-by or operating mode prior tospanning the 
analyzers.
    (2) Replace or clean filter elements (sampling and 
analyticalsystems) as necessary, and then vacuum leak check the 
system,Sec. 92.118. A pressure leak check is also permitted perSec. 
92.118. Allow the heated sample line, filters, andpumps to reach 
operating temperature.
    (3) Perform the following system checks:
    (i) If a stainless steel NO2 to NO converter is 
used,purge the converter with air (zero-grade air, room air, 
orO2) for a minimum of 30 minutes. The converter must be 
atoperational temperature while purging.
    (ii) Check the sample system temperatures (seeSec. 92.114).
    (iii) Check the system response time (see Sec. 92.118).System 
response time

[[Page 463]]

may be applied from the most recent check ofresponse time if all of the 
following are met:
    (A) The flow rate for each flow meter is equal to or greater thanthe 
flow rate recorded in Sec. 92.118.
    (B) For analyzers with capillaries, the response time from 
thesample/span valve is measured using in-use pressures and bypass 
flows(see Sec. 92.118).
    (C) The response time measured in step in paragraph (c)(3)(iii)(B)of 
this section is equal to or less than the slowest response 
timedetermined for Capillary flow analyzers in Sec. 92.118plus 2 
seconds.
    (iv) A hang-up check is permitted.
    (v) A converter-efficiency check is permitted. The check need 
notconform to Sec. 92.121. The test procedure may be aborted atthis 
point in the procedure in order to repair the NO2 toNO 
converter. If the test is aborted, the converter must pass theefficiency 
check described in Sec. 92.121 prior to startingthe test run.
    (4) Introduce the zero-grade gases at the same flow rates 
andpressures used to calibrate the analyzers and zero the analyzers 
onthe lowest anticipated range that will be used during the 
test.Immediately prior to each test, obtain a stable zero for 
eachanticipated range that will be used during the test.
    (5) Introduce span gases to the instruments under the same 
flowconditions as were used for the zero gases. Adjust the 
instrumentgains on the lowest range that will be used to give the 
desired value.Span gases should have a concentration greater than 70 
percent of fullscale for each range used. Immediately prior to each 
test, record theresponse to the span gas and the span-gas concentration 
for each rangethat will be used during the test.
    (6) Check the zero responses. If they have changed more than 
0.5percent of full scale, repeat paragraphs (c)(4) and (5) of 
thissection.
    (7) Check system flow rates and pressures. Note the values ofgauges 
for reference during the test.



Sec. 92.126  Test run.

    (a) The following steps shall be taken for each test:
    (1) Prepare the locomotive, engine, dynamometer, (as applicable)and 
sampling system for the test. Change filters, etc. and leak checkas 
necessary.
    (2) Connect sampling equipment as appropriate for the 
samplingprocedure employed; i.e. raw or dilute (evacuated sample 
collectionbags, particulate, and raw exhaust sampling equipment, 
particulatesample filters, fuel flow measurement equipment, etc.).
    (3) Start the particulate dilution tunnel, the sample pumps, 
theengine cooling fan(s) (engine dynamometer testing) and the 
datacollection and sampling systems (except particulate 
samplecollection). The heated components of any continuous 
samplingsystems(s) (if applicable) shall be preheated to their 
designatedoperating temperatures before the test begins.
    (4) Adjust the sample flow rates to the desired flow rates and 
setgas flow measuring devices to zero (particulate dilution tunnel).
    (5) Read and record all required general and pre-test data (i.e.,all 
required data other than data that can only be collected during orafter 
the emission test).
    (6) Warm-up the locomotive or locomotive engines according tonormal 
warm-up procedures.
    (7) Begin the EPA Test Sequence for Locomotives and 
LocomotiveEngines (see Sec. 92.124). Record all required general 
andtest data throughout the duration of the test sequence.
    (i) Mark the start of the EPA Test Sequence for Locomotives 
andLocomotive Engines on all data records.
    (ii) Begin emission measurement after completing the warmup phaseof 
the EPA Test Sequence for Locomotives and Locomotive Engines, 
asspecified in paragraph (b) of this section. Mark the start and end 
ofeach mode on all data records.
    (iii) A mode shall be voided where the requirements of thissubpart 
that apply to that test mode are not met. This includes thefollowing:
    (A) The data acquisition is terminated prematurely; or
    (B) For engine testing, the engine speed or power output exceedsthe 
tolerance bands established for that mode; or
    (C) Measured concentrations exceed the range of the instrument; or
    (D) The test equipment malfunctions.

[[Page 464]]

    (iv) Modes within the test sequence shall be repeated if itis voided 
during the performance of the test sequence. A mode can berepeated by:
    (A) Repeating the two preceding modes and then continuing with 
thetest sequence, provided that the locomotive or engine is not shut 
downafter the voided test mode; or
    (B) Repeating the preceding mode and then continuing with the 
testsequence from that point, provided that the locomotive or engine 
isnot operated in any mode with lower power than the preceding modeafter 
the voided test mode. For example, if the Notch 2 mode isvoided, then 
the locomotive or engine would be returned to Notch 1while any repairs 
are made.
    (b) Sampling and measurement timing. (1) Gaseous emissionsshall be 
sampled and measured continuously.
    (2)(i) Sampling of particulate emissions from the raw exhaust 
(fordilution) shall be conducted continuously.
    (ii) Sampling of particulates from the diluted exhaust shall 
beginwithin ten seconds after the beginning of each test mode, and 
shallend six minutes after the beginning of each test mode.
    (iii) Sampling of CO2 in the dilution air and 
dilutedexhaust does not need to be continuous, but the measurements used 
forthe calculations must be made after the first two minutes of 
eachmode.
    (3) Fuel flow rate shall be measured continuously. The valuereported 
for the fuel flow rate shall be a one-minute average of theinstantaneous 
fuel flow measurements taken during the last minute ofthe minimum 
sampling period listed in Table B124-1 inSec. 92.124; except for 
testing during idle modes, where itshall be a three-minute average of 
the instantaneous fuel flowmeasurements taken during the last three 
minutes of the minimumsampling period listed in Table B124-1 inSec. 
92.124. Sampling periods greater than one minute areallowed, consistent 
with good engineering practice. Fuel flowaveraging periods should 
generally match the emission sampling periodsas closely as is 
practicable.
    (4) Engine power shall be measured continuously. The valuereported 
for the engine power shall be a one-minute average of theinstantaneous 
power measurements taken during the last minute of theminimum sampling 
period listed in Table B124-1 inSec. 92.124.
    (c) Exhaust gas measurements. (1) Should the analyzerresponse exceed 
100 percent of full scale or respond less than 15percent of full scale, 
the next higher or lower analyzer range shallbe used.
    (2) Each analyzer range that may be used during a test sequencemust 
have the zero and span responses recorded prior to the executionof the 
test sequence. Only the range(s) used to measure the emissionsduring a 
test sequence are required to have their zero and spanrecorded after the 
completion of the test sequence.
    (3) It is permitted to change filter elements between test 
modes,provided such changes do not cause a mode to be voided.
    (4) A leak check is permitted between test modes, provided 
suchchanges do not cause a mode to be voided.
    (5) A hang-up check is permitted between test modes, provided 
suchchanges do not cause a mode to be voided.
    (6) If, during the emission measurement portions of a test, thevalue 
of the gauges downstream of the NDIR analyzer(s) differs by morethan 
2 inches of water from the pretest value, the test 
isvoid.
    (7)(i) For bag samples, as soon as possible transfer the exhaustand 
dilution air bag samples to the analytical system and process 
thesamples.
    (ii) A stabilized reading of the exhaust sample bag on allapplicable 
analyzers shall be made within 20 minutes of the end of thesample 
collection phase of the mode.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July13, 2005]



Sec. 92.127  Emission measurement accuracy.

    (a) Good engineering practice dictates that exhaust emissionsample 
analyzer readings below 15 percent of full scale chartdeflection should 
generally not be used.
    (b) Some high resolution read-out systems such as computers, 
dataloggers, etc., can provide sufficient accuracy and resolution below 
15percent of full scale. Such systems may be used

[[Page 465]]

provided thatadditional calibrations are made to ensure the accuracy of 
thecalibration curves. The following procedure for calibration below 
15percent of full scale may be used:
    (1) If a 16-point gas divider is used, 50 percent of thecalibration 
points shall be below 10 percent of full scale. The gasdivider shall 
conform to the accuracy requirements specified inSec. 92.112.
    (2) If a 7- or 9-point gas divider is used, the gas divider 
shallconform to the accuracy requirements specified inSec. 92.112, and 
shall be used according to the followingprocedure:
    (i) Span the full analyzer range using a top range calibration 
gasmeeting the calibration gas accuracy requirements ofSec. 92.112.
    (ii) Generate a calibration curve according to, and meeting 
theapplicable requirements of Sec. Sec. 92.118 through92.122.
    (iii) Select a calibration gas (a span gas may be used 
forcalibrating the CO2 analyzer) with a concentration 
betweenthe two lowest non-zero gas divider increments. This gas must 
be``named'' to an accuracy of 1.0 percent(2.0 percent for CO2 span gas) of NIST 
gasstandards, or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated 
inparagraphs (b)(2)(i) and (ii) of this section, check the 
concentrationof the gas selected in paragraph (b)(2)(iii) of this 
section. Theconcentration derived from the curve shall be within 2.3percent (2.8 percent for 
CO2 span gas) of thegas' original named concentration.
    (v) Provided the requirements of paragraph (b)(2)(iv) of thissection 
are met, use the gas divider with the gas selected inparagraph 
(b)(2)(iii) of this section and determine the remainder ofthe 
calibration points. Fit a calibration curve perSec. Sec. 92.118 through 
92.122 for the entire analyzerrange.



Sec. 92.128  Particulate handling and weighing.

    (a) At least 1 hour before the test, place each filter in a 
closed(to eliminate dust contamination) but unsealed (to permit 
humidityexchange) petri dish and place in a weighing chamber meeting 
thespecifications of Sec. 92.110(a) of this section forstabilization.
    (b) At the end of the stabilization period, weigh each filter onthe 
microbalance. This reading is the tare weight and must berecorded.
    (c) The filter shall then be stored in a covered petri dish or 
asealed filter holder until needed for testing. If the filters 
aretransported to a remote test location, the filter pairs, stored 
inindividual petri dishes, should be transported in sealed plastic 
bagsto prevent contamination. At the conclusion of a test run, the 
filtersshould be removed from the filter holder, and placed face to face 
in acovered but unsealed petri dish, with the primary filter placed 
faceup in the dish. The filters shall be weighed as a pair. If the 
filtersneed to be transported from a remote test site, back to the 
weighingchamber, the petri dishes should be placed in a sealed plastic 
bag toprevent contamination. Care should be taken in transporting the 
usedfilters such that they are not exposed to excessive, sustained 
directsunlight, or excessive handling.
    (d) After the emissions test, and after the sample and back-
upfilters have been returned to the weighing room after being used, 
theymust be conditioned for at least 1 hour but not more than 80 hours 
andthen weighed. This reading is the gross weight of the filter and 
mustbe recorded.
    (e) The net weight of each filter is its gross weight minus itstare 
weight. Should the sample on the filter contact the petri dish orany 
other surface, the test is void and must be rerun.
    (f) The particulate filter weight (Pf) is the sum of the netweight 
of the primary filter plus the net weight of the backup filter.
    (g) The following optional weighting procedure is permitted:
    (1) At the end of the stabilization period, weigh both the 
primaryand back-up filters as a pair. This reading is the tare weight 
andmust be recorded.
    (2) After the emissions test, in removing the filters from thefilter 
holder, the back-up filter is inverted on top of the primaryfilter. They 
must then be conditioned in the weighing chamber for atleast 1 hour but 
not more than 80 hours. The filters are then weighedas a pair. This 
reading is the gross weight of the filters (Pf) andmust be recorded.

[[Page 466]]

    (3) Paragraphs (a), (c), and (e) of this section apply tothis 
option, except that the word ``filter'' is replacedby ``filters''.



Sec. 92.129  Exhaust sample analysis.

    (a) The analyzer response may be read by automatic data 
collection(ADC) equipment such as computers, data loggers, etc. If ADC 
equipmentis used the following is required:
    (1) The response complies with Sec. 92.130.
    (2) The response required in paragraph (a)(1) of this section maybe 
stored on long-term computer storage devices such as computertapes, 
storage discs, or they may be printed in a listing for storage.In either 
case a chart recorder is not required and records from achart recorder, 
if they exist, need not be stored.
    (3) If the data from ADC equipment is used as permanent records,the 
ADC equipment and the analyzer values as interpreted by the ADCequipment 
are subject to the calibration specifications inSec. Sec. 92.118 
through 92.122, as if the ADC equipmentwere part of the analyzer.
    (b) Data records from any one or a combination of analyzers may 
bestored as chart recorder records.
    (c) Software zero and span.
    (1) The use of ``software'' zero and span ispermitted. The process 
of software zero and span refers to thetechnique of initially adjusting 
the analyzer zero and span responsesto the calibration curve values, but 
for subsequent zero and spanchecks the analyzer response is simply 
recorded without adjusting theanalyzer gain. The observed analyzer 
response recorded from thesubsequent check is mathematically corrected 
back to the calibrationcurve values for zero and span. The same 
mathematical correction isthen applied to the analyzer's response to a 
sample of exhaust gas inorder to compute the true sample concentration.
    (2) The maximum amount of software zero and span 
mathematicalcorrection is 10 percent of full scale 
chart deflection.
    (3) Software zero and span may be used to switch between 
rangeswithout adjusting the gain of the analyzer.
    (4) The software zero and span technique may not be used to 
maskanalyzer drift. The observed chart deflection before and after a 
giventime period or event shall be used for computing the drift. 
Softwarezero and span may be used after the drift has been computed 
tomathematically adjust any span drift so that the ``after''span check 
may be transformed into the ``before'' spancheck for the next mode.
    (d) For sample analysis perform the following sequence:
    (1) Warm-up and stabilize the analyzers; clean and/or replacefilter 
elements, conditioning columns (if used), etc., as necessary.
    (2) Leak check portions of the sampling system that operate 
atnegative gauge pressures when sampling, and allow heated sample 
lines,filters, pumps, etc., to stabilize at operating temperature.
    (3) Optional: Perform a hang-up check for the HFID samplingsystem:
    (i) Zero the analyzer using zero air introduced at the analyzerport.
    (ii) Flow zero air through the overflow sampling system, where 
anoverflow system is used. Check the analyzer response.
    (iii) If the overflow zero response exceeds the analyzer 
zeroresponse by 2 percent or more of the HFID full-scale deflection, 
hang-up is indicated and corrective action must be taken.
    (iv) The complete system hang-up check specified in paragraph (f)of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Zero and span each range to be used on each analyzer usedprior 
to the beginning of the test sequence. The span gases shall havea 
concentration between 75 and 100 percent of full scale chartdeflection. 
The flow rates and system pressures shall be approximatelythe same as 
those encountered during sampling. The HFID analyzer shallbe zeroed and 
spanned through the overflow sampling system, where anoverflow system is 
used.
    (6) Re-check zero response. If this zero response differs from 
thezero response recorded in paragraph (d)(5) of this section by 
morethan 1 percent of full scale, then paragraphs (d) (4), (5),

[[Page 467]]

and(6) of this section should be repeated.
    (7) If a chart recorder is used, identify and record the mostrecent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the mostrecent 
zero and span response as the pre-analysis values.
    (9) Measure (or collect a sample of) the emissions 
continuouslyduring each mode of the test cycle. Indicate the start of 
the test,the range(s) used, and the end of the test on the recording 
medium(chart paper or ADC equipment). Maintain approximately the same 
flowrates and system pressures used in paragraph (d)(5) of this section.
    (10)(i) Collect background HC, CO, CO2, andNOX 
in a sample bag (optional).
    (ii) Measure the concentration of CO2 in the dilutionair 
and the diluted exhaust for particulate measurements.
    (11) Perform a post-analysis zero and span check for each rangeused 
at the conditions specified in paragraph (d)(5) of this section.Record 
these responses as the post-analysis values.
    (12) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 3percent 
for HC, or 2 percent for NOX. CO, andCO2, of full 
scale chart deflection, or the test is void.(If the HC drift is greater 
than 3 percent of full-scale chartdeflection, hydrocarbon hang-up is 
likely.)
    (13) Determine HC background levels (if necessary) by introducingthe 
background sample into the overflow sample system.
    (14) Determine background levels of NOX. CO, 
orCO2 (if necessary).
    (e) HC hang-up. If HC hang-up is indicated, the following 
sequencemay be performed:
    (1) Fill a clean sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzerports.
    (4) Analyze the background air through the entire sample 
probesystem.
    (5) If the difference between the readings obtained is 2 percentor 
more of the HFID full scale deflection:
    (i) Clean the sample probe and the sample line;
    (ii) Reassemble the sample system;
    (iii) Heat to specified temperature; and
    (iv) Repeat the procedure in this paragraph (e).



Sec. 92.130  Determination of steady-state concentrations.

    (a)(1) For HC and NOX emissions, a steady-
stateconcentration measurement, measured after 300 seconds (or 840 
secondsfor notch 8) of testing shall be used instead of an 
integratedconcentration for the calculations in Sec. 92.132 if 
theconcentration response meets either of the criteria of paragraph 
(b)of this section and the criterion of paragraph (c) of this section.
    (2) For CO and CO2 emissions, a steady-stateconcentration 
measurement, measured after 300 seconds (or 840 secondsfor notch 8) of 
testing shall be used. The provisions of paragraphs(b) through (f) of 
this section do not apply for CO andCO2 emissions.
    (b) (1) The steady-state concentration is consideredrepresentative 
of the entire measurement period if the time-weightedconcentration is 
not more than 10 percent higher than the steady-stateconcentration. The 
time-weighted concentration is determined byintegrating the 
concentration response (with respect to time inseconds) over the first 
360 seconds (or 900 seconds for notch 8) ofmeasurement, and dividing the 
area by 360 seconds (or 900 seconds fornotch 8).
    (2) A steady-state concentration is considered representative ofthe 
entire measurement period if the estimated peak area is not morethan 10 
percent of the product of the steady-state concentration and360 seconds 
(or 900 seconds for notch 8). The estimated peak area iscalculated as 
follows, and as shown in Figure B130-1 of thissection):
    (i) Draw the peak baseline as a straight horizontal lineintersecting 
the steady-state response.
    (ii) Measure the peak height from the baseline with the same unitsas 
the steady-state concentration; this value is h.

[[Page 468]]

    (iii) Bisect the peak height by drawing a straight horizontalline 
halfway between the top of the peak and the baseline.
    (iv) Draw a straight line from the top of the peak to the 
baselinesuch that it intersects the response curve at the same point at 
whichthe line described in paragraph (b)(2)(iii) of this section 
intersectsthe response curve.
    (v) Determine the time between the point at which the notch 
waschanged and the point at which the line described in paragraph 
(b)(2)(iv) of this section intersects the baseline; this value is t.
    (vi) The estimated peak area is equal to the product of h and 
t,divided by 2.
    (c) In order to be considered to be a steady-state measurement, 
ameasured response may not vary by more than 5 percent after the first60 
seconds of measurement.
    (d) For responses meeting either of the criteria of paragraph (b)of 
this section, but not meeting the criterion of paragraph (c) ofthis 
section, one of the following values shall be used instead of asteady-
state or integrated concentration:
    (1) The highest value of the response that is measured after 
thefirst 60 seconds of measurement (excluding peaks lasting less than 
5seconds, caused by such random events as the cycling of an 
aircompressor); or
    (2) The highest 60-second, time-weighted, average concentration 
ofthe response after the first 60 seconds of measurement.
    (e) For responses not meeting the criterion in paragraph (c) ofthis 
section, the Administrator may require that the manufacturer 
orremanufacturer identify the cause of the variation, and 
demonstratethat it is not caused by a defeat device.
    (f) The integrated concentration used for calculations shall befrom 
the highest continuous 120 seconds of measurement.
    (g) Compliance with paragraph (b)(2) of this section does notrequire 
calculation where good engineering practice allows complianceto be 
determined visually (i.e., that the area of the peak is muchless than 
the limits set forth in paragraph (b)(2) of this section).

[[Page 469]]

                         Figure to Sec. 92.130
[GRAPHIC] [TIFF OMITTED] TR16AP98.007



Sec. 92.131  Smoke, data analysis.

    The following procedure shall be used to analyze the smoke testdata:
    (a) Locate each throttle notch test mode, or percent rated 
powersetting test mode. Each test mode starts when

[[Page 470]]

the throttle isplaced in the mode and ends when the throttle is moved to 
thesucceeding mode. The start of the first idle mode corresponds to 
thestart of the test sequence.
    (b) Analyze the smoke trace by means of the following procedure:
    (1) Locate the highest reading, and integrate the highest 3-
secondaverage reading around it.
    (2) Locate and integrate the highest 30-second average reading.
    (3) The ``steady-state'' value is either:
    (i) The highest reading occurring more than two minutes after 
thenotch change (excluding peaks lasting less than 5 seconds, caused 
bysuch random events as the cycling of an air compressor) if 
opacitymeasurements are recorded graphically; or
    (ii) The average of the second by second values between 120 and180 
seconds after the notch change if opacity measurements arerecorded 
digitally.
    (c)(1) The values determined in paragraph (b) of this sectionshall 
be normalized by the following equation:
[GRAPHIC] [TIFF OMITTED] TR16AP98.008

Where:

Nn is the normalized percent opacity, Nmis the 
average measured percent opacity (peak or steady-state), and Lis actual 
distance in meters from the point at which the light beamenters the 
exhaust plume to the point at which the light beam leavesthe exhaust 
plume.

    (2) The normalized opacity values determined in paragraph (c)(1)of 
this section are the values that are compared to the standards ofsubpart 
A of this part for determination of compliance.
    (d) This smoke trace analysis may be performed by direct analysisof 
the recorder traces, or by computer analysis of data collected 
byautomatic data collection equipment.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]



Sec. 92.132  Calculations.

    (a) Duty-cycle emissions. This section describes thecalculation of 
duty-cycle emissions, in terms of grams per brakehorsepower hour (g/bhp-
hr). The calculation involves the weightedsumming of the product of the 
throttle notch mass emission rates anddividing by the weighted sum of 
the brake horsepower. The finalreported duty-cycle emission test results 
are calculated as follows:
    (1)(i) Eidc=([Sigma](Mij)(Fj))/
([Sigma](BHPj)(Fj))

Where:

Eidc=Duty-cycle weighted, brake-specific mass emissionrate of 
pollutant i (i.e., HC, CO, NOX or PM and, ifappropriate, THCE 
or NMHC) in grams per brake horsepower-hour;
Mij=the mass emission rate pollutant i for mode j;
Fj=the applicable weighting factor listed in TableB132-1 for 
mode j;
BHPj=the measured brake horsepower for mode j.

    (ii) Table B132-1 follows:

                          Table B132-1--WeightingFactors for Calculating Emission Rates
----------------------------------------------------------------------------------------------------------------
                                                               Locomotive not equipped  Locomotive equipped with
                                                                 with multiple idle       multiple idlenotches
             Throttle notch setting               Test mode            notches         -------------------------
                                                             --------------------------
                                                               Line-haul      Switch     Line-haul      Switch
----------------------------------------------------------------------------------------------------------------
Low Idle.......................................           1a           NA           NA        0.190        0.299
Normal Idle....................................            1        0.380        0.598        0.190        0.299
Dynamic Brake..................................            2        0.125        0.000        0.125        0.000
Notch 1........................................            3        0.065        0.124        0.065        0.124
Notch 2........................................            4        0.065        0.123        0.065        0.123
Notch 3........................................            5        0.052        0.058        0.052        0.058
Notch 4........................................            6        0.044        0.036        0.044        0.036
Notch 5........................................            7        0.038        0.036        0.038        0.036
Notch 6........................................            8        0.039        0.015        0.039        0.015

[[Page 471]]

 
Notch 7........................................            9        0.030        0.002        0.030        0.002
Notch 8........................................           10        0.162        0.008        0.162        0.008
----------------------------------------------------------------------------------------------------------------

    (2) Example: For the line-haul cycle, for locomotives equippedwith 
normal and low idle, and with dynamic brake, the brake-specificemission 
rate for HC would be calculated as:

EHCdc=[(MHCla) 
    (0.190)+(MHC1)(0.190)+(MHC2) 
    (0.125)+(MHC3) (0.065)+(MHC4) 
    (0.065)+(MHC5) (0.052)+(MHC6) 
    (0.044)+(MHC7) (0.038)+(MHC8) 
    (0.039)+(MHC9) (0.030)+(MHC10) (0.162)]/
    [(BHP1a) (0.190)+(BHP1) 
    (0.190)+(BHP2) (0.125)+(BHP3) 
    (0.065)+(BHP4) (0.065)+(BHP5) 
    (0.052)+(BHP6) (0.044)+(BHP7) 
    (0.038)+(BHP8) (0.039)+(BHP9) 
    (0.030)+(BHP10) (0.162)]

    (3) In each mode, brake horsepower output is the power that 
theengine delivers as output (normally at the flywheel), as defined 
inSec. 92.2.
    (i) For locomotive testing (or engine testing using a 
locomotivealternator/generator instead of a dynamometer), brake 
horsepower iscalculated as:

BHP=HPout/Aeff+HPacc

Where:

HPout=Measured horsepower output of thealternator/generator.
Aeff=Efficiency of the alternator/generator.
HPacc=Accessory horsepower.

    (ii) For engine dynamometer testing, brake horsepower isdetermined 
from the engine speed and torque.
    (4) For locomotive equipped with features that shut the engine 
offafter prolonged periods of idle, the measured mass emission 
rateMi1 (and Mi1a as applicable) shall 
bemultiplied by a factor equal to one minus the estimated 
fractionreduction in idling time that will result in use from the 
shutdownfeature. Application of this adjustment is subject to 
theAdministrator's approval.
    (b) Throttle notch emissions. This paragraph (b) describesthe 
calculation of throttle notch emissions for all operating 
modes,including: idle (normal and low, as applicable); dynamic brake; 
andtraction power points. The throttle notch (operating mode) 
emissiontest results, final reported values and values used in paragraph 
(a)(1) of this section are calculated as follows:
    (1) Brake specific emissions (Eij) in grams per 
brakehorsepower-hour of each species i (i.e., HC, CO, NOX or 
PMand, if appropriate, THCE or NMHC) for each mode j:
    (i) EHC mode=HC grams/BHP-hr=MHCmode/Measured 
BHP in mode.

Where:

MHC mode=Mass HC emissions (grams per hour) for eachtest 
mode.

    (ii) ETHCE mode=THCE grams/BHP-hr=MTHCEmode/
Measured BHP in mode.

Where:

MTHCE mode (Total hydrocarbon equivalent massemissions (grams 
per hour) for each test mode):
=MHCj+[Sigma] (Mij) (MWCp)/
MWCi
Mij=the mass emission rate oxygenated pollutant i formode j.
MWCi=the molecular weight of pollutant i divided bythe number 
of carbon atoms per molecule of pollutant i.
MWCp=the molecular weight of a typical petroleum 
fuelcomponent divided by the number of carbon atoms per molecule of 
atypical petroleum fuel component=13.8756.

    (iii) ENMHC mode=NMHC grams/BHP-hr=MNMHCmode/
Measured BHP in mode.

Where:

MNMHC mode=Mass NMHC emissions (grams per hour) foreach test 
mode.

    (iv) ECO mode=CO grams/BHP-hr=MCOmode/Measured 
BHP in mode.

Where:

MCO mode=Mass CO emissions (grams per hour) for eachtest 
mode.

    (v) ENOx mode=NOX grams/BHP-
hr=MNOx mode/Measured BHP in mode.

Where:

MNOx mode=Mass NOX emissions (grams perhour) for 
each test mode.


[[Page 472]]


    (vi) EPM mode=PM grams/BHP-hr=MPMmode/Measured 
BHP in mode.

Where:

MPM mode=Mass PM emissions (grams per hour) for eachtest 
mode.

    (vii) EAL mode=Aldehydes grams/BHP-hr=MALmode/
Measured BHP in mode.
    (vii) EAL mode=Aldehydes grams/BHP-hr=MALmode/
Measured BHP in mode.

Where:

MAL mode=Total aldehyde mass emissions (grams perhour) for 
each test mode.

    (2) Mass Emissions--Raw exhaust measurements. For rawexhaust 
measurements mass emissions (grams per hour) of each speciesfor each 
mode:
    (i) General equations. (A) The mass emission rate, MXmode 
(g/hr), of each pollutant (HC, NOX.CO2, CO, 
CH4 CH3OH,CH3CH2OH, 
CH2O,CH3CH2O) for each operating mode 
for rawmeasurements is determined based on one of the following 
equations:

MX mode=(DX/10\6\)(DVol)(MWX/Vm)
MX mode=(WX/10\6\)(WVol)(MWX/Vm)

Where:

X designates the pollutant (e.g., HC), DX is the concentration 
ofpollutant X (ppm or ppmC) on a dry basis, MWX is 
themolecular weight of the pollutant (g/mol), DVol is the total 
exhaustflow rate (ft\3\/hr) on a dry basis, WX is the concentration 
ofpollutant X (ppm or ppmC) on a wet basis, WVol is the total 
exhaustflow rate (ft\3\/hr) on a wet basis, Vm is the volume 
ofone mole of gas at standard temperature and pressure (ft\3\/mol).

    (B) All measured volumes and volumetric flow rates must becorrected 
to standard temperature and pressure prior to calculations.
    (ii) The following abbreviations and equations apply to 
thisparagraph (b)(2):

[alpha]=Atomic hydrogen/carbon ratio of the fuel.
[beta]=Atomic oxygen/carbon ratio of the fuel.
CMWf=Molecular weight of the fuel per carbon atom, orcarbon 
molecular weight (g/moleC)=(12.011+1.008[alpha]+16.000[beta]).
DCO=CO concentration in exhaust, ppm (dry).
DCO2=CO2 concentration in exhaust, percent(dry).
DHC=HC carbon concentration in exhaust, ppm C (dry).
DNOX=NOX concentration in exhaust, in ppm (dry).
DVol=Total exhaust flow rate (ft\3\/hr) on a dry basis; or
 =(Vm)(Wf)/((CMWf)(DHC/10\6\+DCO/
10\6\+DCO2/100)).
K=Water gas equilibrium constant=3.5.
Kw=Wet to dry correction factor.
MF=Mass flow-rate of fuel used in the engine in lb/
hr=Wf/453.59.
MWC=Atomic weight of carbon=12.011.
MWCO=Molecular weight of CO=28.011.
MWH=Atomic weight of hydrogen=1.008.
MWNO2=Molecular weight of nitrogen 
dioxide(NO2)=46.008.
MWO=Molecular weight of atomic oxygen=16.000.
T=Temperature of inlet air ( [deg]F).
Vm=Volume of one mole of gas at standard temperatureand 
pressure (ft\3\/mole).
Wf=Mass flow-rate of fuel used in the engine, ingrams/
hr=(453.59)x(Mf lbs/hr).
WCO2=CO2 concentration in exhaust, percent(wet).
WHC=HC concentration in exhaust, ppm C (wet).
WVol=Total exhaust flow rate (ft\3\/hr) on a wet basis; or
 =(Vm)(Wf)/((CMWf)(WHC/10\6\+WCO/10\6\ 
WCO2/100)).

    (iii) Calculation of individual pollutant masses. Calculations 
formass emission are shown here in multiple forms. One set of 
equationsis used when sample is analyzed dry (equations where 
theconcentrations are expressed as DX), and the other set is used 
whenthe sample is analyzed wet (equations where the concentrations 
areexpressed as WX). When samples are analyzed for some constituents 
dryand for some constituents wet, the wet concentrations must 
beconverted to dry concentrations, and the equations for 
dryconcentrations used. Also, the equations for HC, NMHC, CO, 
andNOX have multiple forms that are algebraically 
equivalent:An explicit form that requires intermediate calculation 
ofVm and DVol or WVol; and an implicit form that uses onlythe 
concentrations (e.g., DCO) and the mass flow rate of the fuel. Forthese 
calculations, either form may be used.
    (A) Hydrocarbons and nonmethane hydrocarbons.
    (1) Hydrocarbons. (i) For petroleum-fueledengines:

MHC mode
    =(DHC)CMWf(DVol)(10\6\)/Vm
    =((DHC/10\6\)(Wf)/((DCO/10\6\)+(DCO2/
100)+(DHC/10\6\)+([Sigma]DX/10\6\)))
MHC mode
    =(WHC)CMWf(WVol)(10\6\)/Vm

[[Page 473]]

    =((WHC/10\6\)(Wf)/((WCO/10\6\)+(WCO2/
100)+(WHC/10\6\)+([Sigma](WX/10\6\)))

    (ii) For alcohol-fueled engines:

DHC=FID HC-[Sigma](rx)(DX)
WHC=FID HC-[Sigma](rx)(WX)

Where:

FID HC=Concentration of ``hydrocarbon'' plus otherorganics such as 
methanol in exhaust as measured by the FID, ppmcarbon equivalent.
rx=FID response to oxygenatedspeciesx(methanol, ethanol, or 
acetaldehyde).
DX=Concentration of oxygenated speciesx(methanol, ethanol,or 
acetaldehyde) in exhaust as determined from the dry exhaust sample,ppm 
carbon (e.g., DCH3OH, 2(DCH3CH2OH)).
WX=Concentration of oxygenated speciesx(methanol, ethanol,or 
acetaldehyde) in exhaust as determined from the wet exhaust sample,ppm 
carbon.
[Sigma]DX=The sum of concentrations DX for all oxygenatedspecies.
[Sigma]WX=The sum of concentrations WX for all oxygenatedspecies.

    (2) Nonmethane hydrocarbons:

MNMHC mode=(DNMHC)CMWf(DVol) (10\6\)/Vm
    =((DNMHC/10\6\)(Wf)/((DCO/10\6\)+(DCO2/
100)+(DHC/10\6\)))
MNMHC mode=(WNMHC)CMWf(WVol) (10\6\)/Vm
    =((WNMHC/10\6\)(Wf)/((WCO/10\6\)+(WCO2/
100)+(WHC/10\6\)))

Where:

DNMHC=FID HC-(rCH4)(DCH4)
WNMHC=FID HC-(rCH4)(WCH4)
FID HC=Concentration of ``hydrocarbon'' plus otherorganics such as 
methane in exhaust as measured by the FID, ppm carbonequivalent.
rCH4=FID response to methane.
DCH4=Concentration of methane in exhaust as determined from thedry 
exhaust sample, ppm.
WCH4=Concentration of methane in exhaust as determined from thewet 
exhaust sample, ppm.

    (B) Carbon monoxide:

MCO mode=(DCO)MWCO(DVol)/10\6\/Vm
    =((MWCO(DCO/10\6\)(Wf)/((CMWf)(DCO/
10\6\)+(DCO2/100)+DHC/10\6\)+([Sigma]DX/10\6\)))
MCO mode=(WCO)MWCO(DVol)(10\6\)/Vm
+((MWCO(WCO/10\6\)(Wf)/((CMWf)(WCO/
    10\6\)+(WCO2/100)+WHC/10\6\)+([Sigma]WX/10\6\)))

    (C) Oxides of nitrogen:

MNOx mode=(DNOX)MWNO2(DVol)(10\6\)/Vm
    =((MWNO2(DNOX/10\6\)(Wf)/
((CMWf)(DCO/10\6\)+(DCO2/100)+(DHC/
10\6\)+([Sigma]DX/10\6\)))
MNOx mode=(WNOX)MWNO2(DVol)(10\6\)/Vm
    =((MWNO2(WNOX/10\6\)(Wf)/
((CMWf)(WCO/10\6\)+(WCO2/100)+(WHC/
10\6\)+([Sigma]WX/10\6\)))

    (D) Methanol:

MCH3OH mode=(DCH3OH/10\6\)32.042(DVol)/Vm
MCH3OH mode=(WCH3OH/10\6\)32.042(WVol)/Vm

Where:

DCH3OH=(Vm)(10\6\)[(C1xAV1)+(C2
xAV2)]/DVolMS.
WCH3OH=(Vm)(10\6\)[(C1xAV1)+(C2
xAV2)]/WVolMS.
Ci=concentration of methanol in impinger i (1 or 2) inmol/ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2)in ml.
DVolMS=Volume (standard ft\3\) of exhaust sample drawnthrough 
methanol impingers (dry).
WVolMS=Volume (standard ft\3\) of exhaust sample drawnthrough 
methanol impingers (wet).

    (E) Ethanol:

MCH3CH2OH mode=(DCH3CH2OH/10\6\)23.035(DVol)/Vm
MCH3CH2OH mode = (WCH3CH2OH/10\6\)23.035(WVol)/Vm

Where:

DCH3CH2OH=(Vm)(10\6\)[(C1xAV1)
     +(C2xAV2)]/DVolES.
WCH3CH2OH=(Vm)(10\6\)[(C1xAV1)+(C2
xAV2)]/WVolES.
Ci=concentration of ethanol in impinger i (1 or 2) inmol/ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2)in ml.
DVolES=Volume (standard ft\3\) of exhaust sample drawnthrough 
ethanol impingers (dry).
WVolES=Volume (standard ft\3\) of exhaust sample drawnthrough 
ethanol impingers (wet).

    (F) Formaldehyde:

MCH2O mode=(DCH2O/10\6\)30.026(DVol)/Vm
MCH2O mode=(WCH2O/10\6\)30.026(WVol)/Vm

    (1) If aldehydes are measured using impingers:

DCH2O=(Vm)(10\6\)[(C1xAV1)+(C2
    xAV2)]/DVolFS
WCH2O=(Vm)(10\6\)[(C1xAV1)+(C2
    xAV2)]/WVolFS


[[Page 474]]


    (2) If aldehydes are measured using cartridges:

DCH2O=(Vm)(10\6\)(CRxAVR)/
    DVolFS

WCH2O=(Vm)(10\6\)(CRxAVR)/
    WVolFS

    (3) The following definitions apply to this paragraph 
(b)(2)(iii)(F):

AVi=Volume of absorbing reagent in impinger i (1 or 2)in ml.
AVR=Volume of absorbing reagent use to rinse thecartridge in 
ml.
Ci=concentration of formaldehyde in impinger i (1 or2) in 
mol/ml.
CR=concentration of formaldehyde in solvent rinse inmol/ml.
DVolFS=Volume (standard ft\3\) of exhaust sample drawnthrough 
formaldehyde sampling system (dry).
WVolFS=Volume (standard ft\3\) of exhaust sample drawnthrough 
formaldehyde sampling system (wet).

    (G) Acetaldehyde:

MCH3CHO mode=(DCH3CHO/10\6\)27.027(DVol)/Vm
MCH3CHO mode=(WCH3CHO/10\6\)27.027(WVol)/Vm

    (1) If aldehydes are measured using impingers:

DCH3CHO=(Vm)(10\6\)[(C1xAV1)+(C2
    xAV2)]/DVolAS
WCH3CHO=(Vm)(10\6\)[(C1xAV1)+C2
    xAV2)]/WVolAS

    (2) If aldehydes are measured using cartridges:

DCH3CHO=(Vm)(10\6\)(CRxAVR)/
    DVolAS
WCH3CHO=(Vm)(10\6\)(CRxAVR)/
    WVolAS

    (3) The following definitions apply to this paragraph 
(b)(2)(iii)(G):

AVi=Volume of absorbing reagent in impinger i (1 or 2)in ml.
AVR=Volume of absorbing reagent use to rinse thecartridge in 
ml.
Ci=concentration of acetaldehyde in impinger i (1 or2) in 
mol/ml.
CR=concentration of acetaldehyde in solvent rinse inmol/ml.
DVolAS=Volume (standard ft\3\) of exhaust sample drawnthrough 
acetaldehyde sampling system (dry).
WVolAS=Volume (standard ft\3\) of exhaust sample drawnthrough 
acetaldehyde sampling system (wet).

    (iv) Conversion of wet concentrations to dry concentrations. 
Wetconcentrations are converted to dry concentrations using the 
followingequation:

DX=KW WX

Where:

WX is the concentration of species X on a wet basis.
DX is the concentration of species X on a dry basis.
KW is a conversion factor=WVol/DVol=1+DH2O.

    (A) Iterative calculation of conversion factor. The conversionfactor 
KW is calculated from the fractional volume ofwater in the 
exhaust on a dry basis (DH2O=volume of water inexhaust/dry volume of 
exhaust). Precise calculation of the conversionfactor KW must 
be done by iteration, since it requires thedry concentration of HC, but 
HC emissions are measured wet.
    (1) The conversion factor is calculated by first assumingDHC=WHC to 
calculate DVol:

DVol=(Vm)(Wf)/((CMWf)(DHC/10\6\+DCO/
    10\6\+DCO2/100))

    (2) This estimate is then used in the following equations 
tocalculate DVolair, then DH2O, then KW, 
whichallows DHC to be determined more accurately from WHC:
[GRAPHIC] [TIFF OMITTED] TR16AP98.009

Where:

Y=Water volume concentration in intake air, volume fraction (dry).
DVolair=Air intake flow rate (ft\3\/hr) on a drybasis, 
measured, or calculated as:

[[Page 475]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.010

    (3) The calculations are repeated using this estimate ofDHC. If the 
new estimate for KW is not within one percentof the previous 
estimate, the iteration is repeated until thedifference in KW 
between iterations is less than onepercent.
    (B) Alternate calculation of DH2O (approximation). The 
followingapproximation may be used for DH2O instead of the calculation 
inparagraph (b)(2)(iv)(A) of this section:
[GRAPHIC] [TIFF OMITTED] TR16AP98.011

Where:
[GRAPHIC] [TIFF OMITTED] TR16AP98.012

Y=Water volume concentration in intake air, volume fraction (dry).

    (3) Mass Emissions--Dilute exhaust measurements. Fordilute exhaust 
measurements mass emissions (grams per hour) of eachspecies for each 
mode:
    (i) General equations. The mass emission rate,Mx mode (g/
hr) of each pollutant (HC,NOX. CO2, CO, CH4 CH3OH, CH3CH2OH, 
CH2O, CH3CH2O) for eachoperating mode for bag measurements and diesel 
continuously heatedsampling system measurements is determined from the 
followingequation:

Mx mode=(Vmix)(Densityx)(Xconc
    )/(Vf)

Where:

x designates the pollutant (e.g., HC), Vmix is thetotal 
diluted exhaust volumetric flow rate (ft\3\/hr),Densityx is 
the specified density of the pollutant in thegas phase (g/ft\3\), 
Xconc is the fractional concentrationof pollutant x (i.e., 
ppm/10\6\, ppmC/10\6\, or %/100), andVf is the fraction of 
the raw exhaust that is diluted foranalysis.

    (ii) The following abbreviations and equations apply to 
paragraphs(b)(3)(i) through (b)(3)(iii)(J) of this section:
    (A) DF=Dilution factor, which is the volumetric ratio of thedilution 
air to the raw exhaust sample for total dilution, calculatedas:
[GRAPHIC] [TIFF OMITTED] TR16AP98.013

Where:

WCO2=Carbon dioxide concentration of the raw exhaust sample, inpercent 
(wet).
WCO2e=Carbon dioxide concentration of the diluteexhaust 
sample, in percent (wet).
WCO2d=Carbon dioxide concentration of the dilutionair, in 
percent (wet).


[[Page 476]]


    (B) Vmix=Diluted exhaust volumetric flow rate incubic 
feet per hour corrected to standard conditions (528[deg]R, and760 mm 
Hg).
    (C) Vf=Fraction of the total raw exhaust that isdiluted 
for analysis.

=((CO2conc/10\2\)+(COconc/
    10\6\)+(HCconc/10\6\))(Vmix)(CMWf)/
    Vm/Mf

    (iii) Calculation of individual pollutants.
    (A) MHC mode=Hydrocarbon emissions, in gramsper hour by 
mode, are calculated using the following equations:

MHC mode=(Vmix)(DensityHC)(HCconc
    /10\6\)/Vf
HCconc=HCe-(HCd)(1-(1/DF))
HCe=FID HCe-[Xi](rx)(Xe)

Where:

DensityHC=Density of hydrocarbons=16.42 g/ft\3\(0.5800 kg/
m3) for l petroleum diesel fuel, 16.27g/ft\3\ 
(0.5746 kg/m3) for 2 diesel, and 16.33g/ft\3\ 
(0.5767 kg/m\3\) for other fuels, assuming an average carbonto hydrogen 
ratio of 1:1.93 for 1 petroleum diesel fuel, 1:1.80for 
2 petroleum diesel fuel, and 1:1.85 for hydrocarbons inother 
fuels at standard conditions.
HCconc=Hydrocarbon concentration of the dilute exhaustsample 
corrected for background, in ppm carbon equivalent (i.e.,equivalent 
propanex3).
HCe=Hydrocarbon concentration of the dilute exhaustbag 
sample, or for diesel continuous heated sampling systems, 
averagehydrocarbon concentration of the dilute exhaust sample as 
determinedfrom the integrated HC traces, in ppm carbon equivalent. 
Forpetroleum-fueled engines, HCe is the FID measurement. 
Formethanol-fueled and ethanol-fueled engines:
FID HCe=Concentration of hydrocarbon plus methanol,ethanol 
and acetaldehyde in dilute exhaust as measured by the FID, ppmcarbon 
equivalent.
rx=FID response to oxygenated species x (methanol,ethanol or 
acetaldehyde).
Xe=Concentration of species x (methanol, ethanol 
oracetaldehyde) in dilute exhaust as determined from the dilute 
exhaustsample, ppm carbon.
HCd=Hydrocarbon concentration of the dilution air asmeasured, 
in ppm carbon equivalent.

    (B) MNOx mode = Oxides of nitrogen emissions, in gramsper 
hour by mode, are calculated using the following equations:

MNOx mode=(Vmix) 
    (DensityNO2)(NOxconc/10 \6\) /Vf
NOxconc=(NOxe-NOxd(1-(1/DF)))

Where:

DensityNO2=Density of oxides of nitrogen is 54.16g/ft\3\ 
(1.913 kg/m\3\), assuming they are in the form of nitrogendioxide, at 
standard conditions.
NOxconc=Oxides of nitrogen concentration of the diluteexhaust 
sample corrected for background, in ppm.
NOxe=Oxides of nitrogen concentration of the diluteexhaust 
bag sample as measured, in ppm.
NOxd=Oxides of nitrogen concentration of the dilutionair as 
measured, in ppm.

    (C) MCO2 mode=Carbon dioxide emissions, in grams perhour 
by mode, are calculated using the following equations:

MCO2 mode=(Vmix)(Density CO2) 
    (CO2conc/10\2\)/Vf
CO2conc=CO2.-CO2.(1-(1/DF))

Where:

Density CO2=Density of carbon dioxide is 51.81 g/ft\3\(1.830 
kg/m\3\), at standard conditions.
CO2conc=Carbon dioxide concentration of the diluteexhaust 
sample corrected for background, in percent.
CO2.=Carbon dioxide concentration of the diluteexhaust bag 
sample, in percent.
CO2.=Carbon dioxide concentration of the dilution airas 
measured, in percent.

    (D)(1) MCO mode=Carbon monoxide emissions, ingrams per 
hour by mode, are calculated using the following equations:

MCO mode=(Vmix)(DensityCO)(COconc
    /10\6\)/Vf
COconc=COe-COd(1-(1/DF))
COd=(1-0.000323R)COdm

Where:

DensityCO=Density of carbon monoxide is 32.97 g/ft\3\(1.164 
kg/m\3\), at standard conditions.
COconc=Carbon monoxide concentration of the diluteexhaust 
sample corrected for background, water vapor, andCO2 
extraction, ppm.
COe=Carbon monoxide concentration of the diluteexhaust sample 
volume corrected for water vapor and carbon dioxideextraction, in ppm.
COe=(1-(0.01+0.005/[alpha])CO2.-
0.000323RH)COem, where [alpha] isthe hydrogen to carbon ratio 
as measured for the fuel used.
COem=Carbon monoxide concentration of the diluteexhaust 
sample as measured, in ppm.
RH = Relative humidity of the dilution air, percent.
COd=Carbon monoxide concentration of the dilution 
aircorrected for water vapor extraction, in ppm.

[[Page 477]]

COdm=Carbon monoxide concentration of thedilution air sample 
as measured, in ppm.

    (2) If a CO instrument that meets the criteria specified in40 CFR 
part 1065, subpart C, is used without a sample dryer accordingto 40 CFR 
1065.145, COem must be substituted directly forCOe 
and COdm must be substituted directly forCOd.
    (E) MCH4 mode=Methane emissions corrected forbackground, 
in gram per hour by mode, are calculated using thefollowing equations:

MCH4 mode=(Vmix) 
    (DensityCH4)(CH4conc/10\6\) /Vf
CH4conc=CCH4e-CCH4d(1-(1/DF))

Where:

DensityCH4=Density of methane is 18.89 g/ft\3\ at 68[deg]F 
(20 [deg]C) and 760 mm Hg (101.3kPa) pressure.
CH4conc=Methane concentration of the dilute exhaustcorrected 
for background, in ppm.
CCH4e=Methane concentration in the dilute exhaust, inppm.
CCH4d=Methane concentration in the dilution air, inppm.

    (F) MCH3OH mode=Methanol emissions corrected 
forbackground, in gram per hour by mode, are calculated using 
thefollowing equations:

MCH3OH mode=(Vmix)(DensityCH3OH) 
    (CH3OHconc/10\6\)/Vf
CH3OHconc=CCH3OHe-CCH3OHd(1-(1/DF))
CCH3OHe=((3.817)(10-2)(TEM)(((CS1
    )(AVS1))+(CS2) (AVS2)))/
    ((PB)(VEM))
CCH3OHd=((3.817)(10-2)(TDM)(((CD1
    ) (AVD1))+(CD2) (AVD2)))/
    ((PB)(VDM))

Where:

DensityCH3OH=Density of methanol is 37.71 g/ft\3\(1.332 kg/
m\3\), at 68 [deg]F (20 [deg]C) and 760 mm Hg (101.3kPa)pressure.
CH3OHconc=Methanol concentration of the dilute 
exhaustcorrected for background, in ppm.
CCH3OHe=Methanol concentration in the dilute exhaust,in ppm.
C\CH3OHd\=Methanol concentration in the dilution air, in ppm.
TEM=Temperature of methanol sample withdrawn fromdilute 
exhaust, [deg]R.
TDM=Temperature of methanol sample withdrawn fromdilution 
air, [deg]R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of methanol sample withdrawn from diluteexhaust, 
ft \3\.
VDM=Volume of methanol sample withdrawn from dilutionair, ft 
\3\.
CS=GC concentration of aqueous sample drawn fromdilute 
exhaust, [micro]g/ml.
CD=GC concentration of aqueous sample drawn fromdilution air, 
[micro]g/ml.
AVS=Volume of absorbing reagent (deionized water) inimpinger 
through which methanol sample from dilute exhaust is drawn,ml.
AVD=Volume of absorbing reagent (deionized water) inimpinger 
through which methanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (G) MC2H5OH mode=Ethanol emissions corrected 
forbackground, in gram per hour by mode, are calculated using 
thefollowing equations:

MCH3CH2OH mode=(Vmix)(DensityCH3CH2OH)((
    CH3CH2OHconc/10 \6\))/Vf
CH3CH2OHconc=CCH3CH2OHe-
    CCH3CH2OHd(1-(1/DF))
CCH3CH2OHd=((2.654)(10-2)(TDM)(((CD1
    )(AVD1))+(CD2)(AVD2)))/
    ((PB)(VDM))
CCH3CH2OHe=((2.654)(10-2)(TEM)(((CS1
    )(AVS1))+(CS2)(AVS2)))/
    ((PB)(VEM))

Where:

DensityC2H5OH=Density of ethanol is 54.23g/ft \3\ (1.915 kg/m 
\3\), at 68 [deg]F (20 [deg]C)and 760 mm Hg (101.3kPa) pressure.
CH3CH2OHconc=Ethanolconcentration of 
the dilute exhaust corrected for background, in ppm.
CCH3CH2OHe=Ethanol concentration in the diluteexhaust, in 
ppm.
CCH3CH2OHd=Ethanol concentration in the dilution air,in ppm.
TEM= Temperature of ethanol sample withdrawn fromdilute 
exhaust, [deg]R.
TDM=Temperature of ethanol sample withdrawn fromdilution air, 
[deg]R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of ethanol sample withdrawn from diluteexhaust, ft 
\3\.
VDM=Volume of ethanol sample withdrawn from dilutionair, ft 
\3\.
CS=GC concentration of aqueous sample drawn fromdilute 
exhaust, [micro]g/ml.
CD=GC concentration of aqueous sample drawn fromdilution air, 
[micro]g/ml.
AVS= Volume of absorbing reagent (deionized water) inimpinger 
through which ethanol sample from dilute exhaust is drawn,ml.
AVD=Volume of absorbing reagent (deionized water) inimpinger 
through which ethanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (H) MCH2O mode=Formaldehyde emissions corrected 
forbackground, in gram per hour by mode, are calculated using 
thefollowing equations:

MCH2O mode=(Vmix)(DensityCH2O)((CH2
    Oconc/10 \6\)/Vf
CH2Oconc=CCH2Oe-CCH2Od(1-(1/DF))

[[Page 478]]

CCH2Oe=((4.069)(10-2)(CFDE)(VAE
    )(Q)(TEF))/((VSE)(PB)
CCH2Od=((4.069)(10-2)(CFDA)(VAA
    )(Q)(TDF))/(VSA)(PB)

Where:

DensityCH2O=Density of formaldehyde is 35.36g/ft \3\ (1.249 
kg/m \3\), at 68 [deg]F (20 [deg]C)and 760 mmHg (101.3 kPa) pressure.
CH2Oconc=Formaldehyde concentration of the diluteexhaust 
corrected for background, ppm.
CCH2Oe=Formaldehyde concentration in dilute exhaust,ppm.
CCH2Od=Formaldehyde concentration in dilution air,ppm.
CFDE=Concentration of DNPH derivative of formaldehydefrom 
dilute exhaust sample in sampling solution, [micro]g/ml.
VAE=Volume of sampling solution for dilute 
exhaustformaldehyde sample, ml.
Q = Ratio of molecular weights of formaldehyde to its DNPHderivative = 
0.1429.
TEF=Temperature of formaldehyde sample withdrawn fromdilute 
exhaust, [deg]R.
VSE=Volume of formaldehyde sample withdrawn fromdilute 
exhaust, ft\3\.
PB=Barometric pressure during test, mm Hg.
CFDA=Concentration of DNPH derivative of formaldehydefrom 
dilution air sample in sampling solution, [micro]g/ml.
VAA=Volume of sampling solution for dilution airformaldehyde 
sample, ml.
TDF=Temperature of formaldehyde sample withdrawn fromdilution 
air, [deg]R.
VSA=Volume of formaldehyde sample withdrawn fromdilution air, 
ft\3\.

    (I) MCH3CHO mode=Acetaldehyde emissions corrected 
forbackground, in grams per hour by mode, are calculated using 
thefollowing equations:

MCH3CHO mode= 
    (Vmix)(DensityCH3CHO)((CH3CHOconc
    /10\6\)/Vf
CH3CHOconc=CCH3CHOe-CCH3CHOd(1--(1/DF))
CCH3CHOe=((2.774)(10-2)(CADE)(VAE
    )(Q)(TEF))/((VSE)(PB)
CCH3CHOd=((2.774)(10-2)(CADA)(VAA
    )(Q)(TDF))/(VSA)(PB)

Where:

Density CH3CHO=Density of acetaldehyde is 51.88g/ft\3\ (1.833 
kg/m\3\), at 68 [deg]F (20 [deg]C) and 760 mmHg(101.3 kPa) pressure.
CH3CHOconc=Acetaldehyde concentration of the diluteexhaust 
corrected for background, ppm.
CCH3CHOe=Acetaldehyde concentration in dilute exhaust,ppm.
CCH3CHOd=Acetaldehyde concentration in dilution air,ppm.
CADE=Concentration of DNPH derivative of acetaldehydefrom 
dilute exhaust sample in sampling solution, [micro]g/ml.
VAE=Volume of sampling solution for dilute 
exhaustacetaldehyde sample, ml.
Q=Ratio of molecular weights of acetaldehyde to its DNPHderivative
=0.182
TEF=Temperature of acetaldehyde sample withdrawn fromdilute 
exhaust, [deg]R.
VSE=Volume of acetaldehyde sample withdrawn fromdilute 
exhaust, ft\3\.
PB=Barometric pressure during test, mm Hg.
CADAConcentration of DNPH derivative of acetaldehydefrom 
dilution air sample in sampling solution, [micro]g/ml.
VAA=Volume of sampling solution for dilution airacetaldehyde 
sample, ml.
TDF=Temperature of acetaldehyde sample withdrawn fromdilution 
air, [deg]R.
VSA=Volume of acetaldehyde sample withdrawn fromdilution air, 
ft\3\.

    (J) MNMHC mode=Nonmethane hydrocarbon emissions, ingrams 
per hour by mode.

MNMHC mode=(Vmix)(DensityNMHC)((NMHCEconc
    /10\6\))/Vf
NMHCconc=NMHCe--(NMHCd)(1-(1/DF))
NMHCe=FID HCe-(rm)(CCH4e)
NMHCd=FID HCd-(rm)(CCH4d)

Where:

DensityNMHC=Density of nonmethane hydrocarbons=16.42g/ft\3\ 
(0.5800 kg/m\3\) for  1 petroleum diesel fuel, 16.27g/ft\3\ 
(0.5746 kg/m\3\) for 2 diesel, and 16.33 for otherfuels, 
assuming an average carbon to hydrogen ratio of 1:1.93 for1 
petroleum diesel fuel, 1:1.80 for 2 petroleum dieselfuel, and 
1:1.85 for nonmethane hydrocarbons in other fuels atstandard conditions.
NMHCconc=Nonmethane hydrocarbon concentration of thedilute 
exhaust sample corrected for background, in ppm carbonequivalent (i.e., 
equivalent propane x 3).
NMHCe=Nonmethane hydrocarbon concentration of thedilute 
exhaust bag sample:
FID HCe=Concentration of hydrocarbons in diluteexhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4e=Concentration of methane in dilute exhaust asdetermined 
from the dilute exhaust sample.
NMHCd=Nonmethane hydrocarbon concentration of thedilution 
air:
FID HCd=Concentration of hydrocarbons in diluteexhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4d=Concentration of methane in dilute exhaust asdetermined 
from the dilute exhaust sample, ppm.


[[Page 479]]


    (4) Particulate exhaust emissions. The mass ofparticulate for a test 
mode determined from the following equationswhen a heat exchanger is 
used (i.e., no flow compensation), and whenbackground filters are used 
to correct for background particulatelevels:

MPM mode=Particulate emissions, grams per hour bymode.
MPM mode=(WVol)(PMconc)(1+DF)=(Vmix)(PMconc
    )/Vf
PMconc=PMe-PMd(1-(1/DF))
PMe=MPMe/Vsampe/10 \3\
PMd=MPMd/Vsampd/10 \3\

Where:

PMconc=Particulate concentration of the dilutedexhaust sample 
corrected for background, in g/ft \3\
MPMe=Measured mass of particulate for the exhaustsample, in 
mg, which is the difference in filter mass before and afterthe test.
MPMd=Measured mass of particulate for the dilution airsample, 
in mg, which is the difference in filter mass before and afterthe test.
Vsampe=Total wet volume of sample removed from thedilution 
tunnel for the exhaust particulate measurement, cubic feet atstandard 
conditions.
Vsampd=Total wet volume of sample removed from thedilution 
tunnel for the dilution air particulate measurement, cubicfeet at 
standard conditions.
DF=Dilution factor, which is the volumetric ratio of the dilutionair to 
the raw exhaust sample, calculated as:
[GRAPHIC] [TIFF OMITTED] TR16AP98.014

    (c) Humidity calculations. (1) The following abbreviations(and 
units) apply to paragraph (b) of this section:

BARO=barometric pressure (Pa).
H=specific humidity, (g H2O/g of dry air).
KH=conversion factor=0.6220 g H2O/g dryair.
Mair=Molecular weight of air=28.9645.
MH2O=Molecular weight of water=18.01534.
PDB=Saturation vapor pressure of water at the dry 
bulbtemperature (Pa).
PDP=Saturation vapor pressure of water at the 
dewpointtemperature (Pa).
Pv=Partial pressure of water vapor (Pa).
PWB=Saturation vapor pressure of water at the wet 
bulbtemperature (Pa).
TDB=Dry bulb temperature (Kelvin).
TWB=Wet bulb temperature (Kelvin).
Y=Water-vapor volume concentration.

    (2) The specific humidity on a dry basis of the intake air (H) 
isdefined as:

H=((KH) (Pv)/(BARO-Pv))

    (3) The partial pressure of water vapor may be determined using adew 
point device. In that case:

Pv=PDP

    (4) The percent of relative humidity (RH) is defined as:

RH=(Pv/PDB)100

    (5) The water-vapor volume concentration on a dry basis of theengine 
intake air (Y) is defined as:

Y=((H)(Mair)/(MH2O)=Pv/(BARO-
    Pv)

    (d) NOX correction factor. (1)NOX emission 
rates (MNOx mode) shall beadjusted to account for the effects 
of humidity and temperature bymultiplying each emission rate by 
KNOx, which iscalculated from the following equations:

KNOX = (K)(1 + (0.25(logK) \2\)\1/2\)
K = (KH)(KT)
KH =[C1+C2exp((-0.0143)(10.714))]/
    [C1+C2exp((-0.0143)(1000H))]
C1 = -8.7 +164.5exp(-0.0218(A/F)wet)
C2 = 130.7 + 3941exp(- 0.0248(A/F)wet)

Where:

(A/F)wet = Mass of moist air intake divided by mass offuel 
intake.
KT = 1/[1 - 0.0107(T30 -TA)] for tests 
conducted at ambient temperatures below 30[deg]C.
KT = 1.00 for tests conducted at ambient temperaturesat or 
above 30 [deg]C.
T30 = The measured intake manifold air temperature inthe 
locomotive when operated at 30 [deg]C (or 100 [deg]C, whereintake 
manifold air temperature is not available).
TA = The measured intake manifold air temperature inthe 
locomotive as tested (or

[[Page 480]]

the ambient temperature ( [deg]C),where intake manifold air temperature 
is not available).

    (e) Other calculations. Calculations other than thosespecified in 
this section may be used with the advance approval of theAdministrator.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]



Sec. 92.133  Required information.

    (a) The required test data shall be grouped into the following 
twogeneral categories:
    (1) Pre-test data. These data are general test data thatmust be 
recorded for each test. The data are of a more descriptivenature such as 
identification of the test engine, test site number,etc. As such, these 
data can be recorded at any time within 24 hoursof the test.
    (2) Test data. These data are physical test data that mustbe 
recorded at the time of testing.
    (b) When requested, data shall be supplied in the format specifiedby 
the Administrator.
    (c) Pre-test data. The following shall be recorded, andreported to 
the Administrator for each test conducted for compliancewith the 
provisions of this part:
    (1) Engine family identification (including subfamilyidentification, 
such as for aftertreatment systems).
    (2) Locomotive and engine identification, including 
model,manufacturer and/or remanufacturer, and identification number.
    (3) Locomotive and engine parameters, including fuel 
type,recommended oil type, exhaust configuration and sizes, base 
injection(ignition) timing, operating temperature, advance/retard 
injection(ignition) timing controls, recommended start-up and warm-
upprocedures, alternator generator efficiency curve.
    (4) Locomotive or engine and instrument operator(s).
    (5) Number of hours of operation accumulated on the locomotive 
orengine prior to beginning the testing.
    (6) Dates of most recent calibrations required bySec. Sec. 92.115-
92.122.
    (7) All pertinent instrument information such as tuning 
(asapplicable), gain, serial numbers, detector number, calibration 
curvenumber, etc. As long as this information is traceable, it may 
besummarized by system or analyzer identification numbers.
    (8) A description of the exhaust duct and sample probes, 
includingdimensions and locations.
    (d) Test data. The physical parameters necessary to compute thetest 
results and ensure accuracy of the results shall be recorded foreach 
test conducted for compliance with the provisions of this 
part.Additional test data may be recorded at the discretion of 
themanufacturer or remanufacturer. Extreme details of the 
testmeasurements such as analyzer chart deflections will generally not 
berequired on a routine basis to be reported to the Administrator 
foreach test, unless a dispute about the accuracy of the data arises. 
Thefollowing types of data shall be required to be reported to 
theAdministrator. The applicable Application Format for 
Certificationwill specify the exact requirements which may change 
slightly fromyear to year with the addition or deletion of certain 
items.
    (1) Date and time of day.
    (2) Test number.
    (3) Engine intake air and test cell (or ambient, as 
applicable)temperature.
    (4) For each test point, the temperature of air entering theengine 
after compression and cooling in the charge air cooler(s). Iftesting is 
not performed on a locomotive, the correspondingtemperatures when the 
engine is in operation in a locomotive atambient conditions represented 
by the test.
    (5) Barometric pressure. (A central laboratory barometer may beused: 
Provided, that individual test cell barometric pressures areshown to be 
within 0.1 percent of the barometric pressure 
atthe central barometer location.)
    (6) Engine intake and test cell dilution air humidity.
    (7) Measured horsepower and engine speed for each test mode.
    (8) Identification and specifications of test fuel used.
    (9) Measured fuel consumption rate at maximum power.
    (10) Temperature set point of the heated continuous analysissystem 
components (if applicable).

[[Page 481]]

    (11) All measured flow rates, dilution factor, and fractionof 
exhaust diluted for diluted exhaust measurements (as applicable)for each 
test mode.
    (12) Temperature of the dilute exhaust mixture at the inlet to 
therespective gas meter(s) or flow instrumentation used for 
particulatesampling.
    (13) The maximum temperature of the dilute exhaust 
mixtureimmediately ahead of the particulate filter.
    (14) Sample concentrations (background corrected as applicable)for 
HC, CO, CO2, and NOX (and methane, NMHC,alcohols 
and aldehydes, as applicable) for each test mode. Thisincludes the 
continuous trace and the steady-state value (orintegrated value where 
required).
    (15) The stabilized pre-test weight and post-test weight of 
eachparticulate sample and back-up filter or pair of filters.
    (16) Brake specific emissions (g/BHP-hr) for HC, CO,NOX. 
particulate and, if applicable, CH3, NMHC, THCE,CH3OH, 
CH3CH2OH, CH2O and CH3CHO for each test mode.
    (17) The weighted brake specific emissions for HC, CO,NOX 
and particulate (g/BHP-hr) for the total test for theduty-cycle(s) 
applicable to the locomotive.
    (18) The smoke opacity for each test mode. This includes 
thecontinuous trace, the peak values and the steady-state value.

    Effective Date Note: At 63 FR 19044, Apr. 16, 1998,Sec. 92.133 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



                   Subpart C_Certification Provisions



Sec. 92.201  Applicability.

    The requirements of this subpart are applicable to manufacturersand 
remanufacturers of any locomotives and locomotive engines subjectto the 
provisions of subpart A of this part.



Sec. 92.202  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.203  Application for certification.

    (a) For each engine family that complies with all 
applicablestandards and requirements, the manufacturer or remanufacturer 
mustsubmit to the Administrator a completed application for a 
certificateof conformity.
    (b) The application must be approved and signed by the 
authorizedrepresentative of the manufacturer or remanufacturer.
    (c) The application will be updated and corrected by amendment 
asprovided for in Sec. 92.210 to accurately reflect themanufacturer's 
or remanufacturer's production.
    (d) Required content. Each application must include thefollowing 
information:
    (1)(i) A description of the basic engine design including, but 
notlimited to, the engine family specifications, the provisions of 
whichare contained in Sec. 92.204;
    (ii)(A) For freshly manufactured locomotives, a description of 
thebasic locomotive design;
    (B) For freshly manufactured engines for use in 
remanufacturedlocomotives, a description of the locomotive designs in 
which theengines are to be used;
    (C) For remanufactured locomotives, a description of the 
basiclocomotive designs to which the remanufacture system will be 
applied;
    (iii) A list of distinguishable configurations to be included inthe 
engine family;
    (2) An explanation of how the emission control system 
operates,including detailed descriptions of:
    (i) All emission control system components;
    (ii) Injection or ignition timing for each notch (i.e., 
degreesbefore or after top-dead-center), and any functional dependence 
ofsuch timing on other operational parameters (e.g., engine 
coolanttemperature);
    (iii) Each auxiliary emission control device (AECD); and
    (iv) All fuel system components to be installed on any productionor 
test locomotive(s) or engine(s);
    (3) A description of the test locomotive or engine;
    (4) Special or alternate test procedures, if applicable;

[[Page 482]]

    (5) A description of the operating cycle and the period ofoperation 
necessary to accumulate service hours on the test locomotiveor engine 
and stabilize emission levels;
    (6) A description of all adjustable operating parameters(including, 
but not limited to, injection timing and fuel rate),including the 
following:
    (i) The nominal or recommended setting and the associatedproduction 
tolerances;
    (ii) The intended adjustable range, and the physically 
adjustablerange;
    (iii) The limits or stops used to limit adjustable ranges;
    (iv) Production tolerances of the limits or stops used toestablish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops usedto 
establish the physically adjustable range of each parameter, or anyother 
means used to inhibit adjustment, are the most effective meanspossible 
of preventing adjustment of parameters to settings outsidethe 
manufacturer's or remanufacturer's specified adjustable ranges onin-use 
engines;
    (7) For families participating in the averaging, banking, andtrading 
program, the information specified in subpart D of this part;
    (8) Projected U.S. production information for each configuration;
    (9) A description of the test equipment and fuel proposed to beused;
    (10) All test data obtained by the manufacturer or remanufactureron 
each test engine or locomotive;
    (11) The intended useful life period for the engine family, 
inaccordance with Sec. 92.9(a);
    (12) The intended deterioration factors for the engine family, 
inaccordance with Sec. 92.9(b)(2);
    (13) An unconditional statement certifying that all locomotivesand 
engines included the engine family comply with all requirements ofthis 
part and the Clean Air Act.
    (e) At the Administrator's request, the manufacturer 
orremanufacturer must supply such additional information as may 
berequired to evaluate the application.
    (f)(1) If the manufacturer or remanufacturer, submits some or allof 
the information specified in paragraph (d) of this section inadvance of 
its full application for certification, the Administratorshall review 
the information and make the determinations required inSec. 92.208(d) 
within 90 days of the manufacturer's orremanufacturer's submittal.
    (2) The 90-day decision period is exclusive of any elapsed 
timeduring which EPA is waiting for additional information requested 
froma manufacturer or remanufacturer regarding an adjustable 
parameter(the 90-day period resumes upon receipt of the manufacturer's 
orremanufacturer's response). For example, if EPA requests 
additionalinformation 30 days after the manufacturer or remanufacturer 
submitsinformation under paragraph (f)(1) of this section, then 
theAdministrator would make a determination within 60 days of the 
receiptof the requested information from the manufacturer or 
remanufacturer.
    (g)(1) The Administrator may modify the information 
submissionrequirements of paragraph (d) of this section, provided that 
all ofthe information specified therein is maintained by the 
manufacturer orremanufacturer as required by Sec. 92.215, and 
amended,updated, or corrected as necessary.
    (2) For the purposes of this paragraph (g), Sec. 92.215includes all 
information specified in paragraph (d) of this sectionwhether or not 
such information is actually submitted to theAdministrator for any 
particular model year.
    (3) The Administrator may review a manufacturer's orremanufacturer's 
records at any time. At the Administrator'sdiscretion, this review may 
take place either at the manufacturer's orremanufacturer's facility or 
at another facility designated by theAdministrator.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]



Sec. 92.204  Designation of engine families.

    This section specifies the procedure and requirements for groupingof 
engines into engine families.
    (a) Manufacturers and remanufacturers shall divide theirlocomotives 
and locomotive engines into groupings of locomotives andlocomotive 
engines which are expected to have similar emissioncharacteristics 
throughout

[[Page 483]]

their useful life. Each group shall bedefined as a separate engine 
family. Freshly manufactured locomotivesmay not be included in the same 
engine family as remanufacturedlocomotives. Freshly manufactured engines 
may be included in the sameengine family as remanufactured locomotives, 
provided such engines areused as replacement engines for locomotive 
models included in theengine family.
    (b) For Tier 1 and Tier 2 locomotives and locomotive engines, 
thefollowing characteristics distinguish engine families:
    (1) The combustion cycle (e.g., diesel cycle);
    (2) The type of engine cooling employed (air-cooled or water-
cooled), and procedure(s) employed to maintain engine temperaturewithin 
desired limits (thermostat, on-off radiator fan(s), radiatorshutters, 
etc.);
    (3) The bore and stroke dimensions;
    (4) The approximate intake and exhaust event timing and 
duration(valve or port);
    (5) The location of the intake and exhaust valves (or ports);
    (6) The size of the intake and exhaust valves (or ports);
    (7) The overall injection, or as appropriate ignition, 
timingcharacteristics (i.e., the deviation of the timing curves from 
theoptimal fuel economy timing curve must be similar in degree);
    (8) The combustion chamber configuration and the surface-to-
volumeratio of the combustion chamber when the piston is at top dead 
centerposition, using nominal combustion chamber dimensions;
    (9) The location of the piston rings on the piston;
    (10) The method of air aspiration (turbocharged, 
supercharged,naturally aspirated, Roots blown);
    (11) The turbocharger or supercharger general 
performancecharacteristics (e.g., approximate boost pressure, 
approximateresponse time, approximate size relative to engine 
displacement);
    (12) The type of air inlet cooler (air-to-air, air-to-
liquid,approximate degree to which inlet air is cooled);
    (13) The intake manifold induction port size and configuration;
    (14) The type of fuel and fuel system configuration;
    (15) The configuration of the fuel injectors and 
approximateinjection pressure;
    (16) The type of fuel injection system controls (i.e., mechanicalor 
electronic);
    (17) The type of smoke control system;
    (18) The exhaust manifold port size and configuration; and
    (19) The type of exhaust aftertreatment system (oxidationcatalyst, 
particulate trap), and characteristics of the aftertreatmentsystem 
(catalyst loading, converter size vs engine size).
    (c) For Tier 0 locomotives and locomotive engines, the 
followingcharacteristics distinguish engine families:
    (1) The combustion cycle (e.g., diesel cycle);
    (2) The type of engine cooling employed (air-cooled or water-
cooled), and procedure(s) employed to maintain engine temperaturewithin 
desired limits (thermostat, on-off radiator fan(s), radiatorshutters, 
etc.);
    (3) The approximate bore and stroke dimensions;
    (4) The approximate location of the intake and exhaust valves 
(orports);
    (5) The combustion chamber general configuration and theapproximate 
surface-to-volume ratio of the combustion chamber when thepiston is at 
top dead center position, using nominal combustionchamber dimensions;
    (6) The method of air aspiration (turbocharged, 
supercharged,naturally aspirated, Roots blown);
    (7) The type of air inlet cooler (air-to-air, air-to-
liquid,approximate degree to which inlet air is cooled);
    (8) The type of fuel and general fuel system configuration;
    (9) The general configuration of the fuel injectors andapproximate 
injection pressure; and
    (10) The fuel injection system control type (electronic 
ormechanical).
    (d) Upon request by the manufacturer or remanufacturer,locomotives 
or locomotive engines that are eligible to be included inthe same engine 
family based on the criteria in paragraph (b) or (c)of this section may 
be divided

[[Page 484]]

into different engine families.This request must be accompanied by 
information the manufacturer orremanufacturer believes supports the 
addition of these differentengine families. For the purposes of 
determining whether an enginefamily is a small engine family in Sec. 
92.603(a)(2), EPAwill consider the number of locomotives or locomotive 
engines thatcould have been classed together under paragraph (b) or (c) 
of thissection, instead of the number of locomotives or locomotive 
enginesthat are included in a subdivision allowed by this paragraph (d).
    (e) Upon request by the manufacturer or remanufacturer, 
theAdministrator may allow locomotives or locomotive engines that 
wouldbe required to be grouped into separate engine families based on 
thecriteria in paragraph (b) or (c) of this section to be grouped into 
asingle engine family if the manufacturer or remanufacturerdemonstrates 
that similar emission characteristics will occur. Thisrequest must be 
accompanied by emission information supporting theappropriateness of 
such combined engine families.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.204 was 
amended by adding paragraph (f), effectiveJuly 7, 2008. For the 
convenience of the user, the added text is setforth as follows:



Sec. 92.204  Designation of engine families.

                                * * * * *

    (f) Remanufactured Tier 2 locomotives may be included in the 
sameengine family as freshly manufactured Tier 2 locomotives, 
providedsuch engines are used for locomotive models included in the 
enginefamily.



Sec. 92.205  Prohibited controls, adjustable parameters.

    (a) Any system installed on, or incorporated in, a new locomotiveor 
new locomotive engine to enable such locomotive or locomotiveengine to 
conform to standards contained in this part:
    (1) Shall not in its operation or function cause significant 
(asdetermined by the Administrator) emission into the ambient air of 
anynoxious or toxic substance that would not be emitted in the 
operationof such locomotive, or locomotive engine, without such system, 
exceptas specifically permitted by regulation;
    (2) Shall not in its operation, function or malfunction result inany 
unsafe condition endangering the locomotive, its operators, ridersor 
property on a train, or persons or property in close proximity tothe 
locomotive; and
    (3) Shall function during all in-use operation except as 
otherwiseallowed by this part.
    (b) In specifying the adjustable range of each adjustableparameter 
on a new locomotive or new locomotive engine, themanufacturer or 
remanufacturer, shall:
    (1) Ensure that safe locomotive operating characteristics 
areavailable within that range, as required by section 202(a)(4) of 
theClean Air Act, taking into consideration the production 
tolerances;and
    (2) To the maximum extent practicable, limit the physical range 
ofadjustability to that which is necessary for proper operation of 
thelocomotive or locomotive engine.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]



Sec. 92.206  Required information.

    (a) The manufacturer or remanufacturer shall perform the 
testsrequired by the applicable test procedures, and submit to 
theAdministrator the information required by this section: 
Provided,however, that if requested by the manufacturer or 
remanufacturer, theAdministrator may waive any requirement of this 
section for testing oflocomotives, or locomotive engines, for which the 
required emissiondata are otherwise available.
    (b) Exhaust emission deterioration factors, with supporting data.The 
determination of the deterioration factors shall be conducted 
inaccordance with good engineering practice to assure that 
thelocomotives or locomotive engines covered by a certificate 
issuedunder Sec. 92.208 will meet the emission standards inSec. 92.8, 
in actual use for the useful life of thelocomotive or locomotive engine.

[[Page 485]]

    (c) Emission data, including exhaust methane data in the caseof 
locomotives or locomotive engines subject to a non-methanehydrocarbon 
standard, on such locomotives or locomotive engines testedin accordance 
with applicable test procedures of subpart B of thispart. These data 
shall include zero hour data, if generated. In lieuof providing the 
emission data required by paragraph (a) of thissection, the 
Administrator may, upon request of the manufacturer orremanufacturer, 
allow the manufacturer or remanufacturer todemonstrate (on the basis of 
previous emission tests, developmenttests, or other testing information) 
that the engine or locomotivewill conform with the applicable emission 
standards ofSec. 92.8.
    (d) A statement that the locomotives and locomotive engines, 
forwhich certification is requested conform to the requirements inSec. 
92.7, and that the descriptions of tests performed toascertain 
compliance with the general standards inSec. 92.7, and the data derived 
from such tests, areavailable to the Administrator upon request.
    (e) A statement that the locomotive, or locomotive engine, 
withrespect to which data are submitted to demonstrate compliance with 
theapplicable standards of this subpart, is in all material respects 
asdescribed in the manufacturer's or remanufacturer's application 
forcertification; that it has been tested in accordance with 
theapplicable test procedures utilizing the fuels and equipment 
describedin the application for certification; and that on the basis of 
suchtests, the engine family conforms to the requirements of this 
part.If, on the basis of the data supplied and any additional data 
asrequired by the Administrator, the Administrator determines that 
thetest locomotive, or test engine, was not as described in 
theapplication for certification or was not tested in accordance with 
theapplicable test procedures utilizing the fuels and equipment 
asdescribed in the application for certification, the Administrator 
maymake the determination that the locomotive, or engine, does not 
meetthe applicable standards. If the Administrator makes such 
adetermination, he/she may withhold, suspend, or revoke the 
certificateof conformity under Sec. 92.208(c)(3)(i).

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.206 was 
amended by revising paragraph (c), effectiveJuly 7, 2008. For the 
convenience of the user, the revised text is setforth as follows:



Sec. 92.206  Required information.

                                * * * * *

    (c) Emission data, including exhaust methane data in the case 
oflocomotives or locomotive engines subject to a non-methane 
hydrocarbonstandard, on such locomotives or locomotive engines tested 
inaccordance with applicable test procedures of subpart B of this 
part.These data shall include zero hour data, if generated. In lieu 
ofproviding the emission data required by paragraph (a) of this 
section,the Administrator may, upon request of the manufacturer 
orremanufacturer, allow the manufacturer or remanufacturer todemonstrate 
(on the basis of previous emission tests, developmenttests, or other 
testing information) that the engine or locomotivewill conform with the 
applicable emission standards ofSec. 92.8. The requirement to measure 
smoke emissions iswaived for certification and production line testing 
of Tier 2locomotives, except where there is reason to believe the 
locomotivesdo not meet the applicable smoke standards.

                                * * * * *



Sec. 92.207  Special test procedures.

    (a) Establishment of special test procedures by EPA. 
TheAdministrator may, on the basis of written application by 
amanufacturer or remanufacturer, establish special test proceduresother 
than those set forth in this part, for any locomotive orlocomotive 
engine that the Administrator determines is not susceptibleto 
satisfactory testing under the specified test procedures set forthin 
subpart B of this part.
    (b) Use of alternate test procedures by manufacturer 
orremanufacturer. (1) A manufacturer or remanufacturer may elect touse 
an alternate test procedure provided that it is equivalent to 
thespecified procedures with respect to the demonstration of 
compliance,its use is approved in advance by the Administrator, and the 
basis forthe equivalence with the specified test procedures is fully 
describedin the manufacturer's or remanufacturer's application.

[[Page 486]]

    (2) The Administrator may reject data generated underalternate test 
procedures which do not correlate with data generatedunder the specified 
procedures.



Sec. 92.208  Certification.

    (a) Paragraph (a) of this section applies to manufacturers of 
newlocomotives and new locomotive engines. If, after a review of 
theapplication for certification, test reports and data acquired from 
afreshly manufactured locomotive or locomotive engine or from 
adevelopment data engine, and any other information required orobtained 
by EPA, the Administrator determines that the application iscomplete and 
that the engine family meets the requirements of the Actand this part, 
he/she will issue a certificate of conformity withrespect to such engine 
family except as provided by paragraph (c)(3)of this section. The 
certificate of conformity is valid for eachengine family from the date 
of issuance by EPA until 31 December ofthe model year or calendar year 
for which it is issued and upon suchterms and conditions as the 
Administrator deems necessary orappropriate to assure that the 
production locomotives or enginescovered by the certificate will meet 
the requirements of the Act andof this part.
    (b) This paragraph (b) applies to remanufacturers of locomotivesand 
locomotive engines. If, after a review of the application 
forcertification, test reports and data acquired from a 
remanufacturedlocomotive or locomotive engine or from a development data 
engine, andany other information required or obtained by EPA, the 
Administratordetermines that the engine family meets the requirements of 
the Actand of this subpart, he/she will issue a certificate of 
conformitywith respect to such engine family except as provided by 
paragraph (c)(3) of this section. The certificate of conformity is valid 
for eachengine family from the date of issuance by EPA until 31 December 
ofthe model year or calendar year for which it is issued and upon 
suchterms and conditions as the Administrator deems necessary 
orappropriate to assure that the production locomotives or 
enginescovered by the certificate will meet the requirements of the Act 
andof this part.
    (c) This paragraph (c) applies to manufacturers andremanufacturers 
of locomotives and locomotive engines.
    (1) The manufacturer or remanufacturer shall bear the burden 
ofestablishing to the satisfaction of the Administrator that 
theconditions upon which the certificates were issued were satisfied 
orexcused.
    (2) The Administrator will determine whether the test dataincluded 
in the application represents all locomotives or locomotiveengines of 
the engine family.
    (3) Notwithstanding the fact that any locomotive(s) or 
locomotiveengine(s) may comply with other provisions of this subpart, 
theAdministrator may withhold or deny the issuance of any certificate 
ofconformity, or suspend or revoke any such certificate(s) which 
has(have) been issued with respect to any such locomotive(s) 
orlocomotive engine(s) if:
    (i) The manufacturer or remanufacturer submits false or 
incompleteinformation in its application for certification thereof;
    (ii) The manufacturer or remanufacturer renders inaccurate anytest 
data which it submits pertaining thereto or otherwise circumventsthe 
intent of the Act, or of this part with respect to such locomotiveor 
locomotive engine;
    (iii) Any EPA Enforcement Officer is denied access on the 
termsspecified in Sec. 92.215 to any facility or portion thereofwhich 
contains any of the following:
    (A) A locomotive or locomotive engine which is scheduled toundergo 
emissions testing, or which is undergoing emissions testing,or which has 
undergone emissions testing; or
    (B) Any components used or considered for use in the 
construction,modification or buildup of any locomotive or locomotive 
engine whichis scheduled to undergo emissions testing, or which is 
undergoingemissions testing, or which has undergone emissions testing 
forpurposes of emissions certification; or
    (C) Any production locomotive or production locomotive enginewhich 
is or will be claimed by the manufacturer or remanufacturer tobe covered 
by the certificate; or

[[Page 487]]

    (D) Any step in the construction of a locomotive orlocomotive 
engine, where such step may reasonably be expected to havean effect on 
emissions; or
    (E) Any records, documents, reports or histories required by 
thispart to be kept concerning any of the items listed in paragraphs 
(c)(3)(iii)(A) through (D).
    (iv) Any EPA Enforcement Officer is denied ``reasonableassistance'' 
(as defined in Sec. 92.215).
    (4) In any case in which a manufacturer or remanufacturerknowingly 
submits false or inaccurate information or knowingly rendersinaccurate 
or invalid any test data or commits any other fraudulentacts and such 
acts contribute substantially to the Administrator'sdecision to issue a 
certificate of conformity, the Administrator maydeem such certificate 
void ab initio.
    (5) In any case in which certification of a locomotive orlocomotive 
engine is to be withheld, denied, revoked or suspendedunder paragraph 
(c)(3) of this section, and in which the Administratorhas presented to 
the manufacturer or remanufacturer involvedreasonable evidence that a 
violation of Sec. 92.215 in factoccurred, the manufacturer or 
remanufacturer, if it wishes to contendthat, even though the violation 
occurred, the locomotive or locomotiveengine in question was not 
involved in the violation to a degree thatwould warrant withholding, 
denial, revocation or suspension ofcertification under paragraph (c)(3) 
of this section, shall have theburden of establishing that contention to 
the satisfaction of theAdministrator.
    (6) Any revocation, suspension, or voiding of certification 
underparagraph (c)(3) of this section shall:
    (i) Be made only after the manufacturer or remanufacturerconcerned 
has been offered an opportunity for a hearing conducted inaccordance 
with Sec. 92.216; and
    (ii) Extend no further than to forbid the introduction intocommerce 
of locomotives or locomotive engines previously covered bythe 
certification which are still in the hands of the manufacturer 
orremanufacturer, except in cases of such fraud or other misconduct 
thatmakes the certification invalid ab initio.
    (7) The manufacturer or remanufacturer may request, within 30 daysof 
receiving notification, that any determination made by theAdministrator 
under paragraph (c)(3) of this section to withhold ordeny certification 
be reviewed in a hearing conducted in accordancewith Sec. 92.216. The 
request shall be in writing, signed byan authorized representative of 
the manufacturer or remanufacturer asapplicable, and shall include a 
statement specifying themanufacturer's or remanufacturer's objections to 
the Administrator'sdeterminations, and data in support of such 
objections. If theAdministrator finds, after a review of the request and 
supportingdata, that the request raises a substantial factual issue, he/
she willgrant the request with respect to such issue.
    (d) In approving an application for certification, theAdministrator 
may specify:
    (1) A broader range of adjustability than recommended by 
themanufacturer or remanufacturer for those locomotive or 
engineparameters which are to be subject to adjustment, if the 
Administratordetermines that it will not be practical to keep the 
parameteradjusted within the recommended range in use;
    (2) A longer useful life period, if the Administrator determinesthat 
the useful life of the locomotives and locomotive engines in theengine 
family, as defined in Sec. 92.2, is longer than theperiod specified by 
the manufacturer or remanufacturer; and/or
    (3) Larger deterioration factors, if the Administrator 
determinesthat the deterioration factors specified by the manufacturer 
orremanufacturer do not meet the requirements of Sec. 92.9(b)(2)(iv).
    (e) Within 30 days following receipt of notification of 
theAdministrator's determinations made under paragraph (d) of 
thissection, the manufacturer or remanufacturer may request a hearing 
onthe Administrator's determinations. The request shall be in 
writing,signed by an authorized representative of the manufacturer 
orremanufacturer as applicable, and shall include a statement

[[Page 488]]

specifying the manufacturer's or remanufacturer's objections tothe 
Administrator's determinations, and data in support of suchobjections. 
If, after review of the request and supporting data, theAdministrator 
finds that the request raises a substantial factualissue, the 
manufacturer or remanufacturer shall be provided with ahearing in 
accordance with Sec. 92.216 with respect to suchissue.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.208 was 
amended by revising paragraph (a), effectiveJuly 7, 2008. For the 
convenience of the user, the revised text is setforth as follows:



Sec. 92.208  Certification.

    (a) This paragraph (a) applies to manufacturers of new 
locomotivesand new locomotive engines. If, after a review of the 
application forcertification, test reports and data acquired from a 
freshlymanufactured locomotive or locomotive engine or from a 
developmentdata engine, and any other information required or obtained 
by EPA,the Administrator determines that the application is complete and 
thatthe engine family meets the requirements of the Act and this 
part,he/she will issue a certificate of conformity with respect to 
suchengine family except as provided by paragraph (c)(3) of this 
section.The certificate of conformity is valid for each engine family 
startingwith the indicated effective date, but it is not valid for 
anyproduction after December 31 of the model year for which it is 
issued(except as specified in (92.12). The certificate of conformity 
isvalid upon such terms and conditions as the Administrator 
deemsnecessary or appropriate to ensure that the production engines 
coveredby the certificate will meet the requirements of the Act and of 
thispart.

                                * * * * *



Sec. 92.209  Certification with multiple manufacturers or remanufacturers.

    (a) Where there are multiple persons meeting the definition 
ofmanufacturer or remanufacturer, each such person must comply with 
therequirements of this part that apply to manufacturers 
orremanufacturers. However, if one person complies with a 
requirement,then all such persons will be deemed to have complied with 
thatspecific requirement.
    (b) Where more than one entity meets the definition ofmanufacturer 
or remanufacturer for a particular locomotive orlocomotive engine, and 
any one of the manufacturers or remanufacturersobtains a certificate of 
conformity covering such locomotive orlocomotive engine, the 
requirements of subparts C, D, F, and G of thispart shall apply to the 
manufacturer or remanufacturer that obtainsthe certificate of 
conformity. Other manufacturers or remanufacturersare required to comply 
with the requirements of subparts C, D, F, andG of this part only when 
notified by the Administrator. Suchnotification by the Administrator 
shall specify a reasonable timeperiod in which the manufacturer or 
remanufacturer shall comply withthe requirements identified in the 
notice.



Sec. 92.210  Amending the application and certificate of conformity.

    (a) The manufacturer or remanufacturer of locomotives orlocomotive 
engines must notify the Administrator when changes toinformation 
required to be described in the application forcertification are to be 
made to a product line covered by acertificate of conformity. This 
notification must include a request toamend the application or the 
existing certificate of conformity.Except as provided in paragraph (e) 
of this section, no manufactureror remanufacturer shall make said 
changes or produce said locomotivesor engines prior to receiving 
approval from EPA.
    (b) A manufacturer's or remanufacturer's request to amend 
theapplication or the existing certificate of conformity shall 
includethe following information:
    (1) A full description of the change to be made in production, orof 
the locomotives or engines to be added;
    (2) Engineering evaluations or data showing that the locomotivesor 
engines as modified or added will comply with all applicableemission 
standards; and
    (3) A determination whether the manufacturer's or 
remanufacturer'soriginal test fleet selection is still appropriate, and 
if theoriginal test fleet selection is determined not to be 
appropriate,test fleet selection(s) representing the locomotives or 
engineschanged or added which would have

[[Page 489]]

been required if thelocomotives or engines had been included in the 
original applicationfor certification.
    (c) The Administrator may require the manufacturer orremanufacturer 
to perform tests on the locomotive or enginerepresenting the locomotive 
or engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the descriptionof the 
amendment and data derived from such testing as theAdministrator may 
require or conduct, the Administrator will determinewhether the change 
or addition would still be covered by thecertificate of conformity then 
in effect.
    (2) If the Administrator determines that the change or 
newlocomotive(s) or engine(s) meets the requirements of this part and 
theAct, the appropriate certificate of conformity shall be amended.
    (3) If the Administrator determines that the changed or 
newlocomotive(s) or engine(s) does not meet the requirements of this 
partand the Act, the certificate of conformity will not be amended. 
TheAdministrator shall provide a written explanation to the 
manufactureror remanufacturer of the decision not to amend the 
certificate. Themanufacturer or remanufacturer may request a hearing on 
a denial.
    (e) A manufacturer or remanufacturer may make changes in oradditions 
to production locomotives or engines concurrently with thenotification 
to the Administrator as required by paragraph (a) of thissection, if the 
manufacturer or remanufacturer complies with thefollowing requirements:
    (1) In addition to the information required in paragraph (b) ofthis 
section, the manufacturer or remanufacturer must supplysupporting 
documentation, test data, and engineering evaluations asappropriate to 
demonstrate that all affected locomotives and engineswill still meet 
applicable emission standards.
    (2) If, after a review, the Administrator determines 
additionaltesting is required, the manufacturer or remanufacturer must 
providerequired test data within 30 days or cease production of the 
affectedlocomotives or engines.
    (3) If the Administrator determines that the affected locomotivesor 
engines do not meet applicable requirements, the Administrator 
willnotify the manufacturer or remanufacturer to cease production of 
theaffected locomotives or engines and to recall and correct at 
noexpense to the owner all affected locomotives or engines 
previouslyproduced.
    (4) Election to produce locomotives or engines under thisparagraph 
will be deemed to be a consent to recall all locomotives orengines which 
the Administrator determines do not meet applicablestandards and to 
cause such nonconformity to be remedied at no expenseto the owner.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July13, 2005]



Sec. 92.211  Emission-related maintenance instructions for purchasers.

    (a) The manufacturer or remanufacturer shall furnish or cause tobe 
furnished to the ultimate purchaser or owner of each newlocomotive, or 
new locomotive engine, subject to the standardsprescribed in Sec. 92.8, 
written instructions for the propermaintenance and use of the 
locomotive, or locomotive engine, as arereasonable and necessary to 
assure the proper functioning of theemissions control system, consistent 
with the applicable provisions ofparagraph (b) of this section.
    (1) The maintenance and use instructions required by this 
sectionshall be clear and easily understandable.
    (2) The maintenance instructions required by this section 
shallcontain a general description of the documentation which 
woulddemonstrate that the ultimate purchaser or any subsequent owner 
hadcomplied with the instructions.
    (b)(1) The manufacturer or remanufacturer must provide in 
boldfacetype on the first page of the written maintenance instructions 
noticethat maintenance, replacement, or repair of the emission 
controldevices and systems may be performed by any locomotive or 
locomotiveengine repair establishment or individual.
    (2) The instructions under paragraph (b)(1) of this section willnot 
include

[[Page 490]]

any condition on the ultimate purchaser's or owner'susing, in connection 
with such locomotive or locomotive engine, anycomponent or service 
(other than a component or service providedwithout charge under the 
terms of the purchase agreement) which isidentified by brand, trade, or 
corporate name. Such instructions alsowill not directly or indirectly 
distinguish between service performedby any other service establishments 
with which such manufacturer orremanufacturer has a commercial 
relationship and service performed byindependent locomotive or 
locomotive engine repair facilities whichsuch manufacturer or 
remanufacturer has no commercial relationship.
    (3) The prohibition of paragraph (b)(2) of this section may bewaived 
by the Administrator if:
    (i) The manufacturer or remanufacturer satisfies the 
Administratorthat the locomotive or locomotive engine will function 
properly onlyif the component or service so identified is used in 
connection withsuch locomotive or locomotive engine; and
    (ii) The Administrator finds that such a waiver is in the 
publicinterest.
    (c) The manufacturer or remanufacturer shall provide to 
theAdministrator, no later than the time of the submission required 
bySec. 92.203, a copy of the emission-related maintenanceinstructions 
which the manufacturer or remanufacturer proposes tosupply to the 
ultimate purchaser or owner in accordance with thissection. The 
Administrator will review such instructions to determinewhether they are 
reasonable and necessary to assure the properfunctioning of the 
locomotive's, or locomotive engine's emissioncontrol systems. If the 
Administrator determines that suchinstructions are not reasonable and 
necessary to assure the properfunctioning of the emission control 
systems, he/she may disapprove theapplication for certification, or may 
require that the manufacturer orremanufacturer modify the instructions.
    (d) Any revision to the maintenance instructions which will 
affectemissions shall be supplied to the Administrator at least 30 
daysbefore being supplied to the ultimate purchaser or owner unless 
theAdministrator consents to a lesser period of time, and is subject 
tothe provisions of Sec. 92.210.



Sec. 92.212  Labeling.

    (a) General requirements. Each new locomotive and newlocomotive 
engine, subject to the emission standards of this part andcovered by a 
certificate of conformity under Sec. 92.208,shall be labeled by the 
manufacturer or remanufacturer in the mannerdescribed in this section at 
the time of manufacture or remanufacture.
    (b) Locomotive labels. (1) Locomotive labels meeting 
thespecifications of paragraph (b)(2) of this section shall be 
appliedby:
    (i) The manufacturer at the point of original manufacture; and
    (ii) The remanufacturer at the point of original remanufacture;and
    (iii) Any remanufacturer certifying a locomotive or locomotiveengine 
to an FEL different from the last FEL or standard to which thelocomotive 
was previously certified.
    (2)(i) Locomotive labels shall be permanent and legible and shallbe 
affixed to the locomotive in a position in which it will remainreadily 
visible.
    (ii) The label shall be attached to a locomotive chassis 
partnecessary for normal operation and not normally requiring 
replacementduring the service life of the locomotive. This label may not 
beattached to the engine.
    (iii) The label shall be affixed by the manufacturer 
orremanufacturer, in such manner that it cannot be removed 
withoutdestroying or defacing the label. The label shall not be affixed 
toany equipment which is easily detached from such locomotive.
    (iv) The label may be made up of more than one piece, providedthat 
all pieces are permanently attached to the same locomotive part.
    (v) The label shall contain the following information lettered inthe 
English language in block letters and numerals, which shall be ofa color 
that contrasts with the background of the label:
    (A) The label heading: Original Locomotive Emission 
ControlInformation. Manufacturers and remanufacturers may add a 
subheading todistinguish

[[Page 491]]

this label from the engine label described inparagraph (c) of this 
section.
    (B) Full corporate name and trademark of the manufacturer 
orremanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with 
U.S.Environmental Protection Agency regulations which apply to 
locomotivesand locomotive engines, as applicable:
    (1) This locomotive conforms to U.S. EPA regulationsapplicable to 
locomotives originally manufactured prior to January 1,2002; or
    (2) This locomotive conforms to U.S. EPA regulationsapplicable to 
locomotives originally manufactured on or after January1, 2002, but 
before January 1, 2005; or
    (3) This locomotive conforms to U.S. EPA regulationsapplicable to 
locomotives originally manufactured on or after January1, 2005.
    (E) Date of locomotive original manufacture.
    (F) The useful life of the locomotive.
    (G) The standards and/or FELs to which the locomotive wascertified.
    (c) Engine labels. (1) Engine labels meeting thespecifications of 
paragraph (c)(2) of this section shall be appliedby:
    (i) Every manufacturer at the point of original manufacture; and
    (ii) Every remanufacturer at the point of remanufacture.
    (2)(i) Engine labels shall be permanent and legible and shall 
beaffixed to the engine in a position in which it will be readilyvisible 
after installation of the engine in the locomotive.
    (ii) The label shall be attached to an engine part necessary 
fornormal operation and not normally requiring replacement during 
theuseful life of the locomotive.
    (iii) The label shall be affixed by the manufacturer 
orremanufacturer, in such manner that it cannot be removed 
withoutdestroying or defacing the label. The label shall not be affixed 
toany equipment which is easily detached from such engine.
    (iv) The label may be made up of more than one piece, providedthat 
all pieces are permanently attached to the same engine part.
    (v) The label shall contain the following information lettered inthe 
English language in block letters and numerals, which shall be ofa color 
that contrasts with the background of the label:
    (A) The label heading: Engine Emission Control 
Information.Manufacturers and remanufacturers may add a subheading to 
distinguishthis label from the locomotive label described in paragraph 
(b) ofthis section.
    (B) Full corporate name and trademark of the manufacturer 
orremanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with 
U.S.Environmental Protection Agency regulations which apply to 
locomotivesand locomotive engines, as applicable:
    (1) This locomotive and locomotive engine conform to U.S.EPA 
regulations applicable to locomotives and locomotive enginesoriginally 
manufactured prior to January 1, 2002; or
    (2) This locomotive and locomotive engine conform to U.S.EPA 
regulations applicable to locomotives and locomotive enginesoriginally 
manufactured on or after January 1, 2002 and before January1, 2005; or
    (3) This locomotive and locomotive engine conform to U.S.EPA 
regulations applicable to locomotives and locomotive enginesoriginally 
manufactured on or after January 1, 2005.
    (E) The useful life of the locomotive or locomotive engine.
    (F) The standards and/or FELS to which the locomotive orlocomotive 
engine was certified.
    (G) Engine tune-up specifications and adjustments, as recommendedby 
the manufacturer or remanufacturer, in accordance with theapplicable 
emission standards, including but not limited to idlespeed(s), injection 
timing or ignition timing (as applicable), valvelash (as applicable), as 
well as other parameters deemed necessary bythe manufacturer or 
remanufacturer.
    (d) The provisions of this section shall not prevent amanufacturer 
or remanufacturer from also providing on the label anyother information 
that such manufacturer or remanufacturer deemsnecessary for, or useful 
to, the

[[Page 492]]

proper operation andsatisfactory maintenance of the locomotive or 
engine.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.212 was 
amended by revising paragraph (b)(2)(iv),effective July 7, 2008. For the 
convenience of the user, the revisedtext is set forth as follows:



Sec. 92.212  Labeling.

                                * * * * *

    (b) * * *
    (2) * * *
    (iv) The label may be made up of more than one piece 
permanentlyattached to the same locomotive part, except for Tier 0 
locomotives,where you may attach it to separate parts.

                                * * * * *



Sec. 92.213  Submission of locomotive and engine identification numbers.

    (a) Upon request of the Administrator, the manufacturer 
orremanufacturer of any locomotive or locomotive engine covered by 
acertificate of conformity shall, within 30 days of receipt of 
suchrequest, identify by locomotive and/or engine identification 
number,the locomotives or engines covered by the certificate of 
conformity.
    (b) The manufacturer or remanufacturer of any locomotives 
orlocomotive engines covered by a certificate of conformity shallprovide 
to the Administrator, within 60 days of the issuance of acertificate of 
conformity, an explanation of the elements in anylocomotive or engine 
identification coding system in sufficient detailto enable the 
Administrator to identify those locomotives or engineswhich are covered 
by a certificate of conformity.

    Effective Date Note: At 63 FR 19051, Apr. 16, 1998,Sec. 92.213 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.214  Production locomotives and engines.

    Any manufacturer or remanufacturer obtaining certification underthis 
part shall supply to the Administrator, upon his/her request, 
areasonable number of production locomotives or locomotive engines, 
asspecified by the Administrator. The maximum number of locomotives 
orlocomotive engines that may be supplied to the Administrator is 
fiveper model year. The locomotives or locomotive engines shall 
berepresentative of the engines, emission control systems, and 
fuelsystems offered and typical of production locomotives or 
enginesavailable for sale, or use by railroads, under the certificate. 
Theselocomotives or engines shall be supplied for testing at such time 
andplace and for such reasonable periods as the Administrator 
mayrequire.



Sec. 92.215  Maintenance of records; submittal of information; right of entry.

    (a) Any manufacturer or remanufacturer subject to any of 
thestandards or procedures prescribed in this subpart shall 
establish,maintain and retain the following adequately organized and 
indexedrecords:
    (1) General records. The records required to be maintainedby this 
paragraph (a) shall consist of:
    (i) Identification and description of all certificationlocomotives 
or certification locomotive engines for which testing isrequired under 
this subpart.
    (ii) A description of all emission control systems which 
areinstalled on or incorporated in each certification locomotive 
orcertification locomotive engine.
    (iii) A description of all procedures used to test each 
suchcertification locomotive or certification locomotive engine.
    (iv) A copy of all applications for certification, filed with 
theAdministrator.
    (2) Individual records. (i) A brief history of eachlocomotive or 
locomotive engine used for certification under thissubpart including:
    (A) In the case where a current production engine is modified foruse 
as a certification engine or in a certification locomotive, adescription 
of the process by which the engine was selected and of themodifications 
made.

[[Page 493]]

In the case where the certificationlocomotive or the engine for a 
certification locomotive is not derivedfrom a current production engine, 
a general description of the buildupof the engine (e.g., whether 
experimental heads were cast andmachined according to supplied 
drawings). In the cases in the previoustwo sentences, a description of 
the origin and selection process forfuel system components, ignition 
system components, intake-airpressurization and cooling-system 
components, cylinders, pistons andpiston rings, exhaust smoke control 
system components, and exhaustaftertreatment devices as applicable, 
shall be included. The requireddescriptions shall specify the steps 
taken to assure that thecertification locomotive or certification 
locomotive engine, withrespect to its engine, drivetrain, fuel system, 
emission-controlsystem components, exhaust aftertreatment devices, 
exhaust smokecontrol system components or any other devices or 
components asapplicable, that can reasonably be expected to influence 
exhaustemissions will be representative of production locomotives 
orlocomotive engines and that either: All components and/or locomotiveor 
engine, construction processes, component inspection and 
selectiontechniques, and assembly techniques employed in constructing 
suchlocomotives or engines are reasonably likely to be implemented 
forproduction locomotives or engines; or that they are as close 
aspracticable to planned construction and assembly process.
    (B) A complete record of all emission tests performed (excepttests 
performed by EPA directly), including test results, the date andpurpose 
of each test, and the number of miles or megawatt-hoursaccumulated on 
the locomotive or the number of megawatt-hoursaccumulated on the engine.
    (C) A record and description of all maintenance and otherservicing 
performed, giving the date of the maintenance or service andthe reason 
for it.
    (D) A record and description of each test performed to 
diagnoseengine or emission control system performance, giving the date 
andtime of the test and the reason for it.
    (E) A brief description of any significant events affecting 
thelocomotive or engine during the period covered by the history and 
notdescribed by an entry under one of the previous headings, 
includingsuch extraordinary events as locomotive accidents or 
accidentsinvolving the engine or dynamometer runaway.
    (ii) Each such history shall be started on the date that the firstof 
any of the selection or buildup activities in paragraph (a)(2)(i)(A) of 
this section occurred with respect to the certificationlocomotive or 
engine and shall be kept in a designated location.
    (3) All records, other than routine emission test records,required 
to be maintained under this subpart shall be retained by themanufacturer 
or remanufacturer for a period of 8 years after issuanceof all 
certificates of conformity to which they relate. Routineemission test 
records shall be retained by the manufacturer orremanufacturer for a 
period of one (1) year after issuance of allcertificates of conformity 
to which they relate. Records may beretained as hard copy or reduced to 
computer disks, etc., depending onthe record retention procedures of the 
manufacturer or remanufacturer:Provided, that in every case all the 
information contained inthe hard copy shall be retained.
    (4) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer or remanufacturer to retain additionalrecords 
or submit information not specifically required by thissection.
    (5) Pursuant to a request made by the Administrator, themanufacturer 
or remanufacturer shall submit to him/her the informationthat is 
required to be retained.
    (6) EPA may void a certificate of conformity ab initio for 
alocomotive or engine family for which the manufacturer orremanufacturer 
fails to retain the records required in this section orto provide such 
information to the Administrator upon request.
    (b) The manufacturer or remanufacturer of any locomotive 
orlocomotive engine subject to any of the standards prescribed in 
thispart shall submit to the Administrator, at the time of

[[Page 494]]

issuanceby the manufacturer or remanufacturer, copies of all 
instructions orexplanations regarding the use, repair, adjustment, 
maintenance, ortesting of such locomotive or engine, relevant to the 
control ofcrankcase, or exhaust emissions issued by the manufacturer 
orremanufacturer, for use by other manufacturers or 
remanufacturers,assembly plants, distributors, dealers, owners and 
operators. Anymaterial not translated into the English language need not 
besubmitted unless specifically requested by the Administrator.
    (c) Any manufacturer or remanufacturer participating in 
averaging,banking and trading program of subpart D of this part must 
comply withthe maintenance of records requirements of Sec. 92.308.
    (d)(1) Any manufacturer or remanufacturer who has applied 
forcertification of a new locomotive or new locomotive engine subject 
tocertification test under this subpart shall admit or cause to 
beadmitted any EPA Enforcement Officer during operating hours 
onpresentation of credentials to any of the following:
    (i) Any facility where any such tests or any procedures oractivities 
connected with such test are or were performed;
    (ii) Any facility where any locomotive or locomotive engine whichis 
being tested (or was tested, or is to be tested) is present;
    (iii) Any facility where any construction process or assemblyprocess 
used in the modification or buildup of such a locomotive orengine into a 
certification locomotive or certification engine istaking place or has 
taken place; or
    (iv) Any facility where any record or other document relating toany 
of the above is located.
    (2) Upon admission to any facility referred to in paragraph (d)(1)of 
this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any part or aspect of such 
procedures,activities and testing facilities including, but not limited 
to,monitoring locomotive or engine preconditioning, emissions 
tests,mileage (or service) accumulation, maintenance, and locomotive 
orengine storage procedures, and to verify correlation or calibration 
oftest equipment;
    (ii) To inspect and make copies of any such records, designs, 
orother documents, including those records specified in Subpart D ofthis 
part; and
    (iii) To inspect and/or photograph any part or aspect of any 
suchcertification locomotive, or certification locomotive engine and 
anycomponents to be used in the construction thereof.
    (3) In order to allow the Administrator to determine whether ornot 
production locomotives, or production locomotive engines, conformto the 
conditions upon which a certificate of conformity has beenissued, or 
conform in all material respects to the designspecifications applicable 
to those locomotives, or engines, asdescribed in the application for 
certification for which a certificateof conformity has been issued, any 
manufacturer or remanufacturershall admit any EPA Enforcement Officer on 
presentation of credentialsto:
    (i) Any facility where any document, design or procedure relatingto 
the translation of the design and construction of engines andemission 
related components described in the application forcertification or used 
for certification testing into productionlocomotives or production 
engines is located or carried on;
    (ii) Any facility where any locomotives or locomotive engines, tobe 
introduced into commerce are manufactured or remanufactured; and
    (iii) Any facility where records specified this section arelocated.
    (4) On admission to any such facility referred to in paragraph 
(d)(3) of this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any aspects of such manufacture 
orremanufacture and other procedures;
    (ii) To inspect and make copies of any such records, documents 
ordesigns;
    (iii) To inspect and photograph any part or aspect of any 
suchlocomotive(s) or locomotive engine(s) and any component used in 
theassembly thereof that are reasonably related to the purpose of his/
herentry; and

[[Page 495]]

    (iv) To inspect and make copies of any records and 
documentsspecified this section.
    (5) Any EPA Enforcement Officer shall be furnished by those incharge 
of a facility being inspected with such reasonable assistanceas he/she 
may request to help him/her discharge any function listed inthis part. 
Each applicant for or recipient of certification isrequired to cause 
those in charge of a facility operated for itsbenefit to furnish such 
reasonable assistance without charge to EPAwhether or not the applicant 
controls the facility.
    (6) The duty to admit or cause to be admitted any EPA 
EnforcementOfficer applies to any facility involved in the manufacturing 
orassembling of locomotives, remanufacturing systems, or 
locomotiveengines, or the installation of locomotive engines or 
remanufacturingsystems, whether or not the manufacturer or remanufactuer 
owns orcontrols the facility in question and applies both to domestic 
and toforeign manufacturers or remanufacturers and facilities. EPA will 
notattempt to make any inspections which it has been informed that 
locallaw forbids. However, if local law makes it impossible to do what 
isnecessary to insure the accuracy of data generated at a facility, 
noinformed judgment that a locomotive or locomotive engine iscertifiable 
or is covered by a certificate can properly be based onthose data. It is 
the responsibility of the manufacturer orremanufacturer to locate its 
testing and manufacturing and/orremanufacturing facilities in 
jurisdictions where this situation willnot arise.
    (7) For purposes of this section:
    (i) ``Presentation of credentials'' shall mean displayof the 
document designating a person as an EPA Enforcement Officer.
    (ii) Where locomotive, component or engine storage areas 
orfacilities are concerned, ``operating hours'' shall meanall times 
during which personnel other than custodial personnel are atwork in the 
vicinity of the area or facility and have access to it.
    (iii) Where facilities or areas other than those covered byparagraph 
(d)(7)(ii) of this section are concerned, ``operatinghours'' shall mean 
all times during which an assembly line is inoperation or all times 
during which testing, maintenance, mileage (orservice) accumulation, 
production or compilation of records, or anyother procedure or activity 
related to certification testing, totranslation of designs from the test 
stage to the production stage, orto locomotive (or engine) manufacture, 
remanufacture, or assembly isbeing carried out in a facility.
    (iv) ``Reasonable assistance'' includes, but is notlimited to, 
clerical, copying, interpretation and translationservices, the making 
available on request of personnel of the facilitybeing inspected during 
their working hours to inform the EPAEnforcement Officer of how the 
facility operates and to answer hisquestions, and the performance on 
request of emissions tests on anylocomotive (or engine) which is being, 
has been, or will be used forcertification testing. Such tests shall be 
nondestructive, but mayrequire appropriate mileage (or service) 
accumulation. A manufactureror remanufacturer may be compelled to cause 
the personal appearance ofany employee at such a facility before an EPA 
Enforcement Officer bywritten request for his appearance, signed by the 
AssistantAdministrator for Air and Radiation or the Assistant 
Administrator forEnforcement and Compliance Assurance, served on the 
manufacturer orremanufacturer. Any such employee who has been instructed 
by themanufacturer or remanufacturer to appear will be entitled to 
beaccompanied, represented and advised by counsel.
    (v) Any entry without 24 hour prior written or oral notificationto 
the affected manufacturer or remanufacturer shall be authorized 
inwriting by the Assistant Administrator for Air and Radiation or 
theAssistant Administrator for Enforcement and Compliance Assurance.
    (8) EPA may void a certificate of conformity ab initio 
forlocomotives or locomotive engines introduced into commerce if 
themanufacturer or remanufacturer (or contractor for the manufacturer 
orremanufacturer, if applicable) fails to comply with any provision 
ofthis section.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]

[[Page 496]]



Sec. 92.216  Hearing procedures.

    (a)(1) After granting a request for a hearing underSec. 92.210 or 
Sec. 92.208, the Administratorshall designate a Presiding Officer for 
the hearing.
    (2) [Reserved]
    (3) The hearing shall be held as soon as practicable at a time 
andplace fixed by the Administrator or by the Presiding Officer.
    (4) In the case of any hearing requested pursuant toSec. 92.208, 
the Administrator may in his/her discretiondirect that all argument and 
presentation of evidence be concludedwithin such fixed period not less 
than 30 days as he/she may establishfrom the date that the first written 
offer of a hearing is made to themanufacturer. To expedite proceedings, 
the Administrator may directthat the decision of the Presiding Officer 
(who may, but need not be,the Administrator) shall be the final EPA 
decision.
    (b)(1) Upon his/her appointment pursuant to paragraph (a) of 
thissection, the Presiding Officer will establish a hearing file. The 
fileshall consist of the notice issued by the Administrator underSec. 
92.210 or Sec. 92.208 together with anyaccompanying material, the 
request for a hearing and the supportingdata submitted therewith, and 
all documents relating to the requestfor certification and all documents 
submitted therewith, andcorrespondence and other data material to the 
hearing.
    (2) The hearing file will be available for inspection by 
theapplicant at the office of the Presiding Officer.
    (c) An applicant may appear in person, or may be represented 
bycounsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party, or 
inhis/her discretion, may arrange for a prehearing conference at a 
timeand place specified by him/her to consider the following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction 
ofdocuments;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of all or any of theissues 
in dispute;
    (v) Such other matters as may aid in the disposition of thehearing, 
including such additional tests as may be agreed upon by theparties.
    (2) The results of the conference shall be reduced to writing bythe 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in 
aninformal but orderly and expeditious manner. The parties may offeroral 
or written evidence, subject to the exclusion by the PresidingOfficer of 
irrelevant, immaterial and repetitious evidence.
    (2) Witnesses will not be required to testify under oath. 
However,the Presiding Officer shall call to the attention of witnesses 
thattheir statements may be subject to the provisions of 18 U.S.C. 
1001which imposes penalties for knowingly making false statements 
orrepresentations, or using false documents in any matter within 
thejurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the 
PresidingOfficer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts 
ofproceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar 
dataoffered in evidence at the hearings shall, upon a showing 
satisfactoryto the Presiding Officer of their authenticity, relevancy, 
andmateriality, be received in evidence and shall constitute a part 
ofthe record.
    (6) Oral argument may be permitted in the discretion of thePresiding 
Officer and shall be reported as part of the record unlessotherwise 
ordered by him/her.
    (f)(1) The Presiding Officer shall make an initial decision 
whichshall include written findings and conclusions and the reasons 
orbasis therefor on all the material issues of fact, law, or 
discretionpresented on the record. The findings, conclusions, and 
writtendecision shall be provided to the parties and made a part of 
therecord. The initial decision shall become the decision of 
theAdministrator without further proceedings unless there is an appeal 
tothe Administrator or motion

[[Page 497]]

for review by the Administratorwithin 30 days of the date the initial 
decision was filed.
    (2) On appeal from or review of the initial decision 
theAdministrator shall have all the powers which he/she would have 
inmaking the initial decision including the discretion to require 
orallow briefs, oral argument, the taking of additional evidence or 
theremanding to the Presiding Officer for additional proceedings. 
Thedecision by the Administrator shall include written findings 
andconclusions and the reasons or basis therefor on all the 
materialissues of fact, law, or discretion presented on the appeal 
orconsidered in the review.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]

    Effective Date Note: At 63 FR 19053, Apr. 16, 1998,Sec. 92.216 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



    Subpart D_Certification Averaging, Banking, and TradingProvisions



Sec. 92.301  Applicability.

    Locomotive engine families subject to the provisions of subpart Aof 
this part are eligible to participate in the certificationaveraging, 
banking, and trading program described in this subpart. Theprovisions of 
this subpart apply to manufacturers and remanufacturersof new 
locomotives and new locomotive engines manufactured orremanufactured in 
the 1999 model year or later.



Sec. 92.302  Definitions.

    The definitions of subpart A of this part apply to this subpart.The 
following definitions also apply.
    Applicable standard means a standard that would haveotherwise been 
applicable had the locomotive or locomotive engine notbeen certified 
under this subpart to an FEL different than thatstandard.
    Broker means any entity that facilitates a trade between abuyer and 
seller.
    Buyer means the entity that receives credits as a result oftrade or 
transfer.
    Reserved credits means credits that have been generated buthave not 
yet been reviewed by EPA or used to demonstrate complianceunder the 
averaging provisions of this subpart.
    Seller means the entity that provides credits during a tradeor 
transfer.
    Transfer means to convey control of credits generated froman 
individual locomotive to the purchaser, owner or operator of 
thelocomotive at the time of manufacture or remanufacture; or to 
conveycontrol of previously generated credits from the purchaser, owner 
oroperator of an individual locomotive to the manufacturer 
orremanufacturer at the time of manufacture or remanufacture.



Sec. 92.303  General provisions.

    (a) Participation in the averaging, banking and trading program 
isvoluntary. A manufacturer or remanufacturer may choose to involve 
someor all of its families in any or all aspects of the program.
    (b) An engine family is eligible to participate in thecertification 
averaging, banking, and trading program forNOX and PM 
emissions if it is subject to regulation underthis part with certain 
exceptions specified in paragraph (c) of thissection. No averaging, 
banking and trading program is available formeeting the HC, CO, or smoke 
emission standards of this part.
    (c) Locomotives and locomotive engines may not participate in 
thecertification averaging, banking, and trading program if they 
areexported. Only locomotive and locomotive engines certified under 
thispart are eligible for inclusion in this certification 
averaging,banking, and trading program.
    (d) Averaging involves the generation of credits by a manufactureror 
remanufacturer for use by that same manufacturer or remanufacturerin the 
same calendar year. A manufacturer or remanufacturer may useaveraging 
during certification to offset an emission exceedance of anengine family 
caused by an FEL above the applicable emission standard,subject to the 
provisions of this subpart.

[[Page 498]]

    (e) Banking involves the generation of credits by amanufacturer or 
remanufacturer in a given calendar year for use in asubsequent model 
year. A manufacturer or remanufacturer may bankactual credits only after 
the end of the calendar year and after EPAhas reviewed the 
manufacturer's or remanufacturer's end-of-yearreports. During the 
calendar year and before submittal of the end-of-year report, credits 
originally designated in the certificationprocess for banking will be 
considered reserved and may beredesignated for trading or averaging in 
the end-of-year report.Credits declared for banking from the previous 
calendar year that havenot been reviewed by EPA may be used in averaging 
or tradingtransactions. However, such credits may be revoked at a later 
timefollowing EPA review of the end-of-year report or any subsequent 
auditactions.
    (f) Trading involves the sale of banked credits for use 
incertification of new locomotives and new locomotive engines under 
thispart. Only banked credits may be traded; reserved credits may not 
betraded.
    (g) Credit transfer involves the conveying of control overcredits, 
as defined in Sec. 92.302. Transferred credits canbe used in averaging 
or in subsequent transfers. Transferred creditsmay also be reserved for 
later banking. Transferred credits may not betraded unless they have 
been previously banked.



Sec. 92.304  Compliance requirements.

    (a) Manufacturers or remanufacturers wishing to participate 
incertification averaging, banking and trading programs shall select 
aFEL for each engine family they wish to include. The level of the 
FELshall be selected by the manufacturer or remanufacturer, subject 
tothe upper limits described in paragraph (k) of this section. An 
enginefamily certified to an FEL is subject to all provisions specified 
inthis part, except that the applicable FEL replaces the 
applicableNOX and PM emission standard for the family 
participatingin the averaging, banking, and trading program.
    (b) A manufacturer or remanufacturer may certify one or moreengine 
families at FELs above or below the applicable emissionstandard, 
provided the summation of the manufacturer's orremanufacturer's 
projected balance of all credit transactions in agiven calendar year is 
greater than or equal to zero, as calculatedfor each family under Sec. 
92.305 and reported underSec. 92.309.
    (c) Manufacturers and remanufacturers certifying engine familieswith 
FELs exceeding the applicable emission standard shall obtainemission 
credits in amounts sufficient to address the shortfall.Credits may be 
obtained from averaging, banking, trading or transfer,subject to the 
restrictions described in this subpart.
    (d) Manufacturers and remanufacturers certifying engine familieswith 
FELs below the applicable emission standard may generate emissioncredits 
to average, bank, trade, or transfer, or a combinationthereof.
    (e) Credits may only be used for certification; they may not beused 
to remedy a violation of the FEL determined by production line orin-use 
testing. Credits may be used to allow subsequent production ofengines 
for an engine family failing production line testing if themanufacturer 
elects to recertify to a higher FEL
    (f) If an FEL is changed after initial certification in any 
givenmodel year, the manufacturer/remanufacturer must conduct 
productionline testing to verify that the emission levels are achieved.
    (g) Manufacturers and remanufacturers participating in theaveraging, 
banking and trading program must demonstrate compliancewith the 
applicable emission standards at the end of the model year.Manufacturers 
and remanufacturers that have certified engine familiesto FELs above the 
applicable emission standards and do not havesufficient emission credits 
to offset the difference between theemission standard and the FEL for 
such engine family(ies) will be inviolation of the conditions of the 
certificate of conformity for suchengine family(ies). The certificates 
of conformity may be voided abinitio for those engine families.
    (h) In the event of a negative credit balance resulting from acredit 
trade or

[[Page 499]]

transfer, both the buyer(s) and the seller(s) areliable, except in cases 
involving fraud. Certificates of all enginefamilies participating in a 
negative trade may be voided abinitio.
    (1) Where a buyer of credits is not responsible for causing 
thenegative credit balance, it is only liable to supply 
additionalcredits equivalent to any amount of invalid credits that it 
used.
    (2) Credit holders responsible for the credit shortfall may 
besubject to the requirements of Sec. 92.309(g)(3).
    (i) Averaging sets. This subpart includes separate programs 
forcompliance with each type of cycle-weighted standards inSec. 92.8 
(i.e., line-haul and switch). Credits generatedover the line-haul duty-
cycle may not be used for compliance with theswitch duty-cycle, and 
credits generated over the switch duty-cyclemay not be used for 
compliance with the line-haul duty-cycle.
    (j) Cross tier credit exchanges. Cross tier credit exchanges 
forNOX and PM emission credits may be exchanged between 
andamong Tier 0, Tier 1, and Tier 2 engine families with the 
followingexceptions:
    (1) For 2005 and 2006 model year freshly manufactured 
locomotives,manufacturers may use PM credits for all of their freshly 
manufacturedengine families. Manufacturers may use NOX 
credits onlyfor engine families that are projected to represent 75 
percent or lessof their total projected annual production of freshly 
manufacturedlocomotives. The remainder must comply with the Tier 2 
NOXemission standards without the use of credits.
    (2) For 2007 and later model year freshly manufacturedlocomotives, 
manufacturers may use PM credits for all of their freshlymanufactured 
engine families. Manufacturers may use NOXcredits only for 
engine families that are projected to represent 50percent or less of 
their total projected annual production of freshlymanufactured 
locomotives. The remainder must comply with the Tier 2NOX 
emission standards without the use of credits.
    (3) Credits generated from remanufactured locomotives prior 
toJanuary 1, 2002 and which are banked may only be used for 
compliancewith the Tier 1 or later emission standards.
    (k) Upper limits. The FELs for NOX and PM for 
newlocomotives and new locomotive engines certified to the Tier 1 
andTier 2 standards may not exceed the following values:
    (1) Tier 1: the Tier 0 standards.
    (2) Tier 2: the Tier 1 standards, except as noted in paragraph (j)of 
this section.
    (l) Credit life shall be unlimited.
    (m) Credits may be generated by any certifying manufacturer 
orremanufacturer and may be held by any of the following entities:
    (1) Locomotive or locomotive engine manufacturers;
    (2) Locomotive or locomotive engine remanufacturers;
    (3) Locomotive or locomotive engine owners;
    (4) Locomotive or locomotive engine operators; or
    (5) Other entities after notification to EPA.
    (n)(1) All locomotives that are certified to an FEL that isdifferent 
from the emission standard that would otherwise apply to thelocomotive 
or locomotive engine are required to comply with that FELfor the 
remainder of their service lives, except as allowed bySec. 
92.9(a)(4)(iii) and this subpart.
    (2) Manufacturers shall notify the purchaser of any locomotiveengine 
that is certified to an FEL that is different from the emissionstandard 
that would otherwise apply that the locomotive or locomotiveengine is 
required to comply with that FEL for the remainder of itsservice life.
    (3) Remanufacturers shall notify the owner of any locomotive 
orlocomotive engine that is certified to an FEL that is different 
fromthe emission standard that would otherwise apply that the 
locomotive(or the locomotive in which the engine is used) is required to 
complywith that FEL for the remainder of its service life.



Sec. 92.305  Credit generation and use calculation.

    (a) For each participating engine family, NOX and 
PMemission credits (positive or negative) are to be calculated 
accordingto the following equation and rounded in accordance with 
ASTME29-93a, to the nearest

[[Page 500]]

Megagram (Mg). Consistent unitsare to be used throughout the 
calculation.
    (1) When useful life is expressed in terms of megawatt-hrs:
    Credits for each engine family are calculated as: 
Emissioncredits=(Std - FEL) x (UL) x (Production)x (Fp) x 
(10-3 kW-Mg/MW-g).
    (2) Where:
    (i) Std=the applicable locomotive and locomotive 
engineNOX and/or PM emission standard in grams per kilowatt-
hour(exceptions: Std=0.43 g/kW-hr, for Tier 0 and Tier 1 PM line-
haulcredits; Std=0.59 g/kW-hr, for Tier 0 and Tier 1 PM switch 
credits;and Std=previous FEL in g/kW-hr, for locomotives that were 
certifiedto an FEL other than the standard during the previous useful 
life).
    (ii) FEL=the family emission limit for the engine family in gramsper 
kilowatt-hour. For Tier 1 and Tier 2 engine families, the FEL maynot 
exceed the limit established in Sec. 92.304(k) for eachpollutant.
    (iii) UL=the sales weighted average useful life in megawatt-
hours,based on the sales weighted average horsepower of the engine 
family(or the subset of the engine family for which credits are 
beingcalculated), as specified in the application for certification.
    (iv) Production=the number of locomotives or locomotive 
enginesparticipating in the averaging, banking, and trading program 
withinthe given engine family during the calendar year (or the number 
oflocomotives or locomotive engines in the subset of the engine 
familyfor which credits are being calculated). Quarterly 
productionprojections are used for initial certification. Actual 
applicableproduction/sales volumes are used for end-of-year 
compliancedetermination.
    (v) Fp=the proration factor as determined in paragraph(c) 
of this section.
    (b) When useful life is expressed in terms of miles or years, 
theuseful life in terms of megawatt hours (UL) shall be calculated 
bydividing the useful life in miles by 100,000, and multiplying by 
thesales weighted average horsepower of the engine family. Credits 
arecalculated using this UL value in the equations of paragraph (a) 
ofthis section.
    (c) The proration factor is an estimate of the fraction of 
alocomotive's service life that remains as a function of age.
    (1) The locomotive's age is the length of time in years from thedate 
of original manufacture to the date at which the remanufacture(for which 
credits are being calculated) is completed, rounded to thenext higher 
year.
    (2) The proration factors for ages 1 through 32 are specified 
inTable D305-1 of this section. For locomotives or locomotiveengines 
more than 32 years old, the proration factor for 32 year oldlocomotives 
shall be used.
    (3) For replacement or repower engines, the proration factor isbased 
on the age of the locomotive chassis, not the age of the engine.

                          Table to Sec. 92.305

                     Table D305-1--Proration Factor
------------------------------------------------------------------------
                     Age                          Fp      Age       Fp
------------------------------------------------------------------------
1............................................    0.964       17    0.452
2............................................    0.929       18    0.429
3............................................    0.893       19    0.405
4............................................    0.857       20    0.381
5............................................    0.821       21    0.357
6............................................    0.786       22    0.333
7............................................    0.750       23    0.310
8............................................    0.714       24    0.286
9............................................    0.679       25    0.268
10...........................................    0.643       26    0.250
11...........................................    0.607       27    0.232
12...........................................    0.571       28    0.214
13...........................................    0.548       29    0.196
14...........................................    0.524       30    0.179
15...........................................    0.500       31    0.161
16...........................................    0.476       32    0.143
------------------------------------------------------------------------




Sec. 92.306  Certification.

    (a) In the application for certification a manufacturer 
orremanufacturer must:
    (1) Declare its intent to include specific engine families in 
theaveraging, banking, and/or trading programs. Separate declarations 
arerequired for each program (line-haul and switch) and for 
eachpollutant (NOX and PM).
    (2) Declare duty-cycle FELs for each engine family participatingin 
certification averaging, banking, and/or trading.
    (i) The FELs must be to the same number of significant digits asthe 
emission standard.
    (ii) In no case may the FEL exceed the upper limit prescribed 
inSec. 92.304(k).

[[Page 501]]

    (3) Conduct and submit detailed calculations of projectedemission 
credits (positive or negative) based on quarterly productionprojections 
for each participating family and for each pollutant,using the 
applicable equation in Sec. 92.305 and theapplicable values of the 
terms in the equation for the specificfamily.
    (i) If the engine family is projected to have negative 
emissioncredits, state specifically the source (manufacturer/engine 
family,remanufacturer/engine family, or transfer) of the credits 
necessary tooffset the credit deficit according to quarterly projected 
production.
    (ii) If the engine family is projected to generate credits, 
statespecifically where the quarterly projected credits will be 
applied(manufacturer/engine family or remanufacturer/engine family, 
reservedor transfer).
    (4) Submit a statement that the locomotives or locomotive enginesfor 
which certification is requested will not, to the best of 
themanufacturer's or remanufacturer's belief, cause the manufacturer 
orremanufacturer to have a negative credit balance when all credits 
arecalculated for all the manufacturer's or remanufacturer's 
enginefamilies participating in the averaging, banking, and trading 
program.
    (b) Based on this information, each manufacturer's 
certificationapplication must demonstrate:
    (1) That at the end of model year production, each engine familyhas 
a net emissions balance equal to or greater than zero for anypollutant 
and program for which participation in certification underaveraging, 
banking, and/or trading is being sought. The equation insection Sec. 
92.305 shall be used in this calculation foreach engine family.
    (2) That the manufacturer or remanufacturer will obtain 
sufficientcredits to be used to comply with the emission standard for 
any enginefamily with an FEL that exceeds the applicable emission 
standard, orwhere credits will be applied if the FEL is less than the 
emissionstandard. In cases where credits are being obtained, for each 
enginefamily involved the manufacturer or remanufacturer must 
identifyspecifically the source of the credits being used (manufacturer/
enginefamily, or remanufacturer/engine family, or transfer). All 
suchreports shall include all credits involved in certification 
averaging,banking, or trading.
    (3) In cases where credits are being generated/supplied, eachengine 
family must indicate specifically the designated use of thecredits 
involved (manufacturer/remanufacturer and engine family,reserved or 
transfer). All such reports shall include all creditsinvolved in 
certification averaging, banking, or trading.
    (c) Manufacturers and remanufacturers must monitor projectedversus 
actual production throughout the model year to ensure thatcompliance 
with emission standards is achieved at the end of the modelyear.
    (d) At the end of the model year, the manufacturer orremanufacturer 
must provide the end-of-year reports required underSec. 92.309.
    (1) Projected credits based on the information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such projected credits must be validatedbased 
on review of the end of model year reports and may be revoked ata later 
time based on follow-up audits or any other verificationmeasure deemed 
appropriate by the Administrator.
    (2) Compliance for engine families using averaging, banking, 
ortrading will be determined at the end of the model year. 
Manufacturersand remanufacturers that have certified engine families 
with creditbalances for NOX and/or PM that do not equal or 
exceedzero shall be in violation of the conditions of the certificate 
ofconformity for such engine families. The certificate of conformity 
maybe voided ab initio for those engine families.
    (e) Other conditions of certification.
    (1) All certificates issued are conditional upon compliance by 
themanufacturer or remanufacturer with the provisions of this 
subpartboth during and after the calendar year of production.
    (2) Failure to comply with all provisions of this subpart will 
beconsidered to be a failure to satisfy the conditions upon which 
thecertificate was issued, and the certificate may be deemed void 
abinitio.

[[Page 502]]

    (3) The manufacturer or remanufacturer (as applicable) bearsthe 
burden of establishing to the satisfaction of the Administratorthat the 
conditions upon which the certificate was issued weresatisfied or 
waived.



Sec. 92.307  Labeling.

    For all locomotives and locomotive engines included in 
thecertification averaging, banking, and trading program, the FEL 
towhich the locomotive or locomotive engine is certified must beincluded 
on the label required in Sec. 92.212. This labelmust include the 
notification specified in Sec. 92.304(n).



Sec. 92.308  Maintenance of records.

    (a) The manufacturer or remanufacturer of any locomotive 
orlocomotive engine that is certified under the averaging, banking, 
andtrading program must establish, maintain, and retain the 
followingadequately organized and indexed records for each such 
locomotive orlocomotive engine produced:
    (1) EPA engine family and configuration;
    (2) Engine identification number;
    (3) Engine calendar year and build date;
    (4) Rated horsepower;
    (5) Purchaser and destination or owner; and
    (6) Assembly plant.
    (b) The manufacturer or remanufacturer of any engine family thatis 
certified under the averaging, banking, and trading program 
mustestablish, maintain, and retain the following adequately organized 
andindexed records for each such family:
    (1) Model year and EPA engine family;
    (2) Family Emission Limit (FEL);
    (3) Rated horsepower for each configuration;
    (4) Projected applicable production/sales volume for the 
calendaryear;
    (5) Actual applicable production/sales volume for the calendaryear; 
and
    (6) Useful life.
    (c) Any manufacturer or remanufacturer producing an engine 
familyparticipating in trading or transfer of credits must maintain 
thefollowing records on a quarterly basis for each engine family in 
thetrading program:
    (1) The model year and engine family;
    (2) The actual quarterly and cumulative applicableproduction/sales 
volume;
    (3) The values required to calculate credits as given inSec. 
92.305;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer or remanufacturer must retain all 
recordsrequired to be maintained under this section for a period of 8 
yearsfrom the due date for the end-of-calendar year report. Records may 
beretained as hard copy or reduced to microfilm, ADP diskettes, and 
soforth, depending on the manufacturer's or remanufacturer's 
recordretention procedure; provided, that in every case all 
informationcontained in the hard copy is retained.
    (e) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer or remanufacturer to retain additionalrecords 
or submit information not specifically required by thissection.
    (f) Pursuant to a request made by the Administrator, themanufacturer 
or remanufacturer must submit to the Administrator theinformation that 
the manufacturer or remanufacturer is required toretain.
    (g) EPA may void ab initio a certificate of conformity foran engine 
family for which the manufacturer or remanufacturer fails toretain the 
records required in this section or to provide suchinformation to the 
Administrator upon request.

    Effective Date Note: At 63 FR 19056, Apr. 16, 1998,Sec. 92.308 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.309  Reports.

    (a) Manufacturer or remanufacturers must submit the 
certificationinformation as required under Sec. 92.306, and end-of-
yearreports each year as part of their participation in 
certificationaveraging, banking, and trading programs. All entities 
involved incredit

[[Page 503]]

trades or transfers must submit quarterly reports asspecified in 
paragraph (b) of this section.
    (b) Quarterly reports. (1) Those holding or receivingtransferred 
credits as allowed in Sec. 92.303(m) must submitquarterly reports of 
their holdings or receipts when credits aregained or lost.
    (2) The reports shall include the source or recipient of thecredits 
the amount of credits involved plus remaining balances,details regarding 
the pollutant, duty-cycle, and model year/Tier aswell as the information 
prescribed in Sec. 92.308(c). Copiesof contracts related to credit 
trading or transfer must be included orsupplied by the buyer, seller, 
and broker, as applicable.
    (c) End-of-year reports must include the information prescribed 
inSec. 92.308(b). The report shall include a calculation ofcredit 
balances for each family to show that the summation of themanufacturer's 
or remanufacturer's use of credits results in a creditbalance equal to 
or greater than zero. The report shall be consistentin detail with the 
information submitted under Sec. 92.306and show how credit surpluses 
were dispersed and how credit shortfallswere met on a family specific 
basis. The end-of-year report shallincorporate any information reflected 
in previous quarterly reports.
    (d) The applicable production/sales volume for quarterly and end-of-
year reports must be based on the location of either the point offirst 
retail sale by the manufacturer or remanufacturer or the pointat which 
the locomotive is placed into service, whichever occursfirst. This is 
called the final product purchase location.
    (e) Each quarterly and end-of-year report submitted shall includea 
statement certifying to the accuracy and authenticity of thematerial 
reported therein.
    (f) Requirements for submission. (1) Quarterly reports mustbe 
submitted within 90 days of the end of the calendar quarter to:Group 
Manager, Engine Compliance Programs Group, Engine Programs andCompliance 
Division U.S. Environmental Protection Agency,6403-J, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
    (2) End-of-year reports must be submitted within 120 days of theend 
of the calendar year to: Group Manager, Engine Compliance ProgramsGroup, 
Engine Programs and Compliance Division, U.S. EnvironmentalProtection 
Agency, 6403-J, 1200 Pennsylvania Ave., NW.,Washington, DC 20460.
    (3) Failure by a manufacturer or a remanufacturer participating 
inthe averaging, banking, or trading program to submit any quarterly 
orend-of-year reports in the specified time for all engines is 
aviolation of sections 203(a)(1) and 213 of the Clean Air Act for 
eachlocomotive or locomotive engine.
    (4) A manufacturer or remanufacturer generating credits forbanking 
only who fails to submit end-of-year reports in the applicablespecified 
time period (120 days after the end of the calendar year)may not use or 
trade the credits until such reports are received andreviewed by EPA. 
Use of projected credits pending EPA review is notpermitted in these 
circumstances.
    (g) Reporting errors. (1) Errors discovered by EPA or 
themanufacturer or the remanufacturer as applicable in the end-of-
yearreport, including errors in credit calculation, may be corrected 
180-days subsequent to submission of the end-of-year report. 
Errorsdiscovered by EPA after 180-days shall be correctable if, as a 
resultof the correction, the manufacturer's or remanufacturer's credits 
arereduced. Errors in the manufacturer's or remanufacturer's favor 
arenot corrected if discovered after the 180-day correction 
periodallowed.
    (2) If EPA or the manufacturer or remanufacturer determines that 
areporting error occurred on an end of year report previously 
submittedto EPA under this section, the manufacturer's or 
remanufacturer'scredits and credit calculations will be recalculated. 
Erroneouspositive credits will be void. Erroneous negative credit 
balances maybe corrected by EPA.
    (3) If EPA review of a manufacturer's or remanufacturers end-of-year 
report indicates a credit shortfall, the manufacturer orremanufacturer 
will be permitted to purchase the necessary credits tobring the credit 
balance to zero. These credits must be supplied atthe

[[Page 504]]

ratio of 1.1 credits for each 1.0 credit needed. Ifsufficient credits 
are not available to bring the credit balance tozero for the family(ies) 
involved, EPA may void the certificate(s) forthat family(ies) ab initio. 
In addition, all locomotives andlocomotive engines within an engine 
family for which there areinsufficient credits will be considered to 
have violated theconditions of the certificate of conformity and 
therefore not coveredby that certificate.
    (4) If within 180 days of receipt of the manufacturer's 
orremanufacturer's end-of-year report, EPA review determines a 
reportingerror in the manufacturer's or remanufacturer's favor (that 
is,resulting in an increased credit balance) or if the manufacturer 
orremanufacturer discovers such an error within 180 days of EPA 
receiptof the end-of-year report, the credits are restored for use by 
themanufacturer or remanufacturer.

    Effective Date Note: At 63 FR 19057, Apr. 16, 1998,Sec. 92.309 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.310  Notice of opportunity for hearing.

    Any voiding of the certificate under this subpart will be madeonly 
after the manufacturer or remanufacturer concerned has beenoffered an 
opportunity for a hearing conducted in accordance withSec. 92.216 and, 
if a manufacturer or remanufacturerrequests such a hearing, will be made 
only after an initial decisionby the Presiding Officer.



   Subpart E_Emission-Related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program



Sec. 92.401  Applicability.

    The requirements of this subpart are applicable to manufacturersand 
remanufacturers of locomotives and locomotive engines subject tothe 
provisions of subpart A of this part. The requirement to reportemission-
related defects affecting a given class or category oflocomotives or 
locomotive engines applies for eight years from the endof the year in 
which such locomotives or locomotive engines weremanufactured, or 
remanufactured, as applicable.



Sec. 92.402  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.403  Emission defect information report.

    (a) A manufacturer or remanufacturer must file a defectinformation 
report whenever it determines, in accordance withprocedures it 
established to identify either safety-related orperformance defects, (or 
based on other information) that a specificemission-related defect 
exists in ten or more locomotives orlocomotive engines. No report must 
be filed under this paragraph forany emission-related defect corrected 
prior to the sale, orreintroduction into service of a remanufactured 
locomotive orlocomotive engine, of the affected locomotives or 
locomotive enginesto an ultimate purchaser.
    (b) Defect information reports required under paragraph (a) ofthis 
section must be submitted not more than 15 working days after thesame 
emission-related defect is found to affect 10 or more locomotivesor 
locomotive engines. Information required by paragraph (c) of thissection 
that is either not available within 15 working days or issignificantly 
revised must be submitted as it becomes available.
    (c) Except as provided in paragraph (b) of this section, eachdefect 
report must contain the following information in substantiallythe format 
outlined as follows:
    (1) The manufacturer's or remanufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of locomotives 
orlocomotive engines potentially affected by the defect including 
make,model, calendar year produced, purchaser (or owner) and any 
otherinformation as may be required to identify the locomotives 
orlocomotive engines affected.
    (4) For each class or category of locomotives and locomotiveengines 
described in response to paragraph (c)(3)

[[Page 505]]

of thissection, the following shall also be provided:
    (i) The number of locomotives and/or locomotive engines known 
orestimated to have the defect and an explanation of the means by 
whichthis number was determined.
    (ii) The address of the plant(s) at which the potentiallydefective 
locomotives or locomotive engines were produced.
    (5) An evaluation of the emissions impact of the defect and 
adescription of any operational or performance problems which adefective 
locomotive or locomotive engine might exhibit.
    (6) Available emissions data which relate to the defect.
    (7) An indication of any anticipated follow-up by the manufactureror 
remanufacturer.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]



Sec. 92.404  Voluntary emissions recall reporting.

    (a) When any manufacturer or remanufacturer initiates a 
voluntaryemissions recall campaign involving a locomotive or locomotive 
engine,the manufacturer or remanufacturer shall submit to EPA a 
reportdescribing the manufacturer's or remanufacturer's voluntary 
emissionsrecall plan as prescribed by this section within 15 working 
days ofthe date owner notification was begun. The report shall contain 
thefollowing:
    (1) A description of each class or category of locomotives 
orlocomotive engines recalled including the number of locomotives 
orlocomotive engines to be recalled, the calendar year if applicable,the 
make, the model, and such other information as may be required 
toidentify the locomotives or locomotive engines recalled.
    (2) A description of the specific modifications, 
alterations,repairs, corrections, adjustments, or other changes to be 
made tocorrect the locomotives or locomotive engines affected by 
theemission-related defect.
    (3) A description of the method by which the manufacturer 
orremanufacturer will notify locomotive or locomotive engine owners.
    (4) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer or remanufacturer conditions eligibility 
forrepair under the remedial plan, an explanation of the 
manufacturer'sor remanufacturer's reasons for imposing any such 
condition, and adescription of the proof to be required of a locomotive 
or locomotive-engine owner to demonstrate compliance with any such 
condition.
    (5) A description of the procedure to be followed by locomotive 
orlocomotive-engine owners to obtain correction of the 
nonconformity.This shall include designation of the date on or after 
which the ownercan have the nonconformity remedied, the time reasonably 
necessary toperform the labor to remedy the defect, and the designation 
offacilities at which the defect can be remedied.
    (6) If some or all the nonconforming locomotives or 
locomotiveengines are to be remedied by persons other than authorized 
warrantyagents of the manufacturer or remanufacturer, a description of 
theclass of persons other than authorized warranty agents of 
themanufacturer or remanufacturer who will remedy the defect.
    (7) A copy of any written notification sent to locomotive 
orlocomotive-engine owners.
    (8) A description of the system by which the manufacturer 
orremanufacturer will assure that an adequate supply of parts will 
beavailable to perform the repair under the remedial plan including 
thedate by which an adequate supply of parts will be available 
toinitiate the repair campaign, the percentage of the total 
partsrequirement of each person who is to perform the repair under 
theremedial plan to be shipped to initiate the campaign, and the 
methodto be used to assure the supply remains both adequate and 
responsiveto owner demand.
    (9) Three copies of all necessary instructions to be sent to 
thosepersons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuelconsumption, 
operation or performance, and safety of each class orcategory of 
locomotives or locomotive engines to be recalled.

[[Page 506]]

    (11) A sample of any label to be applied to locomotives orlocomotive 
engines which participate in the voluntary recall campaign.
    (b) Unless otherwise specified by the Administrator, themanufacturer 
or remanufacturer shall report on the progress of therecall campaign by 
submitting subsequent reports for six consecutivequarters, or until 
proven that remedial action has been adequatelytaken on all affected 
locomotives or locomotive engines, whicheveroccurs first, commencing 
with the quarter after the voluntaryemissions recall campaign actually 
begins. Such reports shall besubmitted no later than 25 working days 
after the close of eachcalendar quarter. For each class or category of 
locomotive orlocomotive engine subject to the voluntary emissions recall 
campaign,the quarterly report shall contain the:
    (1) Emission recall campaign number, if any, designated by 
themanufacturer or remanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in 
thevoluntary emissions recall campaign.
    (4) Number of locomotives or locomotive engines known or estimatedto 
be affected by the emission-related defect and an explanation ofthe 
means by which this number was determined.
    (5) Number of locomotives or locomotive engines inspected pursuantto 
voluntary emission recall plan.
    (6) Number of inspected locomotives or locomotive engines found tobe 
affected by the emissions-related defect.
    (7) Number of locomotives or locomotive engines actually 
receivingrepair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to 
beunavailable for inspection or repair under the remedial plan due 
toexportation, scrappage, or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to 
beineligible for remedial action due to a failure to properly maintainor 
use such locomotives or locomotive engines.
    (10) Three copies of any service bulletins which relate to thedefect 
to be corrected and which have not previously been reported.
    (11) Three copies of all communications transmitted to locomotiveor 
locomotive-engine owners which relate to the defect to be correctedand 
which have not previously been submitted.
    (c) If the manufacturer or remanufacturer determines that any ofthe 
information requested in paragraph (b) of this section has changedor was 
incorrect, revised information and an explanatory note shall 
besubmitted. Answers to paragraphs (b) (5), (6), (7), (8), and (9) 
ofthis section shall be cumulative totals.
    (d) The manufacturer or remanufacturer shall maintain in a 
formsuitable for inspection, such as computer information storage 
devicesor card files, the names and addresses of locomotive and 
locomotive-engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the 
remedialplan; and
    (3) Who were determined not to qualify for such remedial actionwhen 
eligibility is conditioned on proper maintenance or use.
    (e) The records described in paragraph (d) of this section shallbe 
made available to the Administrator upon request.



Sec. 92.405  Alternative report formats.

    (a) Any manufacturer or remanufacturer may submit a plan formaking 
either of the reports required by Sec. Sec. 92.403and 92.404 on 
computer diskettes, magnetic tape or other machinereadable format. The 
plan shall be accompanied by sufficient technicaldetail to allow a 
determination that data requirements of thesesections will be met and 
that the data in such format will be usableby EPA.
    (b) Upon approval by the Administrator of the reporting system,the 
manufacturer or remanufacturer may use such system until 
otherwisenotified by the Administrator.



Sec. 92.406  Reports filing: record retention.

    (a) The reports required by Sec. Sec. 92.403 and92.404 shall be 
sent to: Group Manager, Engine Compliance Programs

[[Page 507]]

Group, Engine Programs and Compliance Division, U.S.Environmental 
Protection Agency, 6403-J, 1200 PennsylvaniaAve., NW., Washington, DC 
20460.
    (b) The information gathered by the manufacturer or remanufacturerto 
compile the reports required by Sec. Sec. 92.403 and92.404 shall be 
retained for not less than 8 years from the date ofthe manufacture of 
the locomotives or locomotive engines and shall bemade available to duly 
authorized officials of the EPA upon request.

    Effective Date Note: At 63 FR 19059, Apr. 16, 1998,Sec. 92.406 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.407  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpartshall 
not affect a manufacturer's or a remanufacturer's responsibilityto file 
reports or applications, obtain approval, or give notice underany 
provision of law.



Sec. 92.408  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Reportpursuant 
to Sec. 92.403 is inconclusive as to the existenceof a defect subject 
to the warranty provided by section 207(a) of theAct.
    (b) A manufacturer or remanufacturer may include on each page ofits 
Emission Defect Information Report a disclaimer stating that thefiling 
of a Defect Information Report pursuant to these regulations isnot 
conclusive as to the applicability of the Production Warrantyprovided by 
section 207(a) of the Act.



  Subpart F_Manufacturer and Remanufacturer Production LineTesting and 
                             Audit Programs



Sec. 92.501  Applicability.

    The requirements of this subpart are applicable to manufacturersand 
remanufacturers of locomotives and locomotive engines subject tothe 
provisions of subpart A of this part, except as follows:
    (a) The requirements of Sec. Sec. 92.503, 92.505,92.506, 92.507, 
92.508, and 92.510 only apply to manufacturers offreshly manufactured 
locomotives or locomotive engines (includingthose used for repowering). 
The Administrator may also apply theserequirements to remanufacturers of 
any locomotives or locomotiveengines for which there is reason to 
believe production problems existthat could affect emissions 
performance. EPA will notify suchremanufacturers when it makes a 
determination that production problemsmay exist that could affect 
emissions performance, and therequirements of these sections shall apply 
as specified in the notice.
    (b) The requirements of Sec. 92.511 only apply toremanufacturers of 
locomotives and locomotive engines.

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.501 was 
amended by adding paragraph (c), effectiveJuly 7, 2008. For the 
convenience of the user, the added text is setforth as follows:



Sec. 92.501  Applicability.

                                * * * * *

    (c) Manufacturers may comply with the provisions of subpart D of40 
CFR part 1033 instead of the provisions of this subpart F.



Sec. 92.502  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 92.503  General Requirements.

    (a) Manufacturers (and remanufacturers, where applicable) shalltest 
production line locomotives or locomotive engines using the 
testprocedures specified in Sec. 92.506. The Administrator mayrequire 
manufacturers and remanufacturers to conduct production linetesting on 
locomotives. If the Administrator determines thatlocomotive testing is 
required, he/she shall notify the manufactureror remanufacturer, and 
shall specify in such notice the time period inwhich the manufacturer or 
remanufacturer shall complete such testing.
    (b) Remanufacturers of locomotives and locomotive engines 
shallconduct audits pursuant to the requirements of Sec. 92.511to 
ensure that remanufactured locomotives and locomotive engines

[[Page 508]]

comply with the requirements of this part.
    (c) Upon request, the Administrator may also allow manufacturers(and 
remanufacturers, where applicable) to conduct alternateproduction line 
testing programs, provided the Administratordetermines that the 
alternate production line testing program providesequivalent assurance 
that the locomotives and locomotive engines thatare being produced 
conform to the provisions of this part. As part ofthis allowance or for 
other reasons, the Administrator may waive someor all of the 
requirements of this subpart.

[63 FR 18998, Apr. 16, 1998, as amended at 65 FR 73331, Dec.29, 1999]



Sec. 92.504  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureror 
remanufacturer is complying with the provisions of this part, oneor more 
EPA enforcement officers may enter during operating hours andupon 
presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any locomotiveor 
locomotive engine is to be introduced into commerce or anyemission-
related component is manufactured, remanufactured, assembled,or stored;
    (2) Any facility where any test or audit conducted pursuant to 
amanufacturer's or remanufacturer's production line testing or 
auditingprogram or any procedure or activity connected with such test or 
auditis or was performed;
    (3) Any facility where any test locomotive or locomotive engine 
ispresent; and
    (4) Any facility where any record required underSec. 92.509 or 
other document relating to this subpart islocated.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers are authorized to perform 
thefollowing inspection-related activities:
    (1) To inspect and monitor any aspect of locomotive or 
locomotiveengine manufacture, remanufacture, assembly, storage, testing 
andother procedures, and to inspect and monitor the facilities in 
whichthese procedures are conducted;
    (2) To inspect and monitor any aspect of locomotive or 
locomotiveengine test procedures or activities, including test 
locomotive orengine selection, preparation and service accumulation, 
emission testcycles, and maintenance and verification of test 
equipmentcalibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection, and testing of a locomotive 
orlocomotive engine; and
    (4) To inspect and photograph any part or aspect of any locomotiveor 
locomotive engine and any component used in the assembly thereofthat is 
reasonably related to the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain 
reasonableassistance without cost from those in charge of a facility to 
help theofficers perform any function listed in this subpart and they 
areauthorized to request the manufacturer or remanufacturer to 
makearrangements with those in charge of a facility operated for 
themanufacturer or remanufacturer's benefit to furnish 
reasonableassistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
an EPA enforcement officer's request of personnel of thefacility being 
inspected during their working hours to inform the EPAenforcement 
officer of how the facility operates and to answer theofficer's 
questions; and the performance on request of emission testson any 
locomotive or engine which is being, has been, or will be usedfor 
production line testing or auditing.
    (2) By written request, signed by the Assistant Administrator forAir 
and Radiation or the Assistant Administrator for Enforcement 
andCompliance Assurance, and served on the manufacturer 
orremanufacturer, a manufacturer or remanufacturer may be compelled 
tocause the personal appearance of any employee at such a facilitybefore 
an EPA enforcement officer. Any such employee who has beeninstructed by 
the manufacturer or remanufacturer to appear will beentitled to be

[[Page 509]]

accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant 
orcourt order authorizing the EPA enforcement officers to conduct 
theactivities authorized in this section, as appropriate, to execute 
thefunctions specified in this section. EPA enforcement officers 
mayproceed ex parte to obtain a warrant or court order whether or not 
theEPA enforcement officers first attempted to seek permission from 
themanufacturer or remanufacturer or the party in charge of 
thefacility(ies) in question to conduct the activities authorized in 
thissection.
    (e) A manufacturer or remanufacturer is responsible for locatingits 
foreign testing, manufacturing, and remanufacturing facilities 
injurisdictions where local law does not prohibit an EPA 
enforcementofficer(s) from conducting the activities specified in this 
section.EPA will not attempt to make any inspections which it has 
beeninformed local foreign law prohibits.

    Effective Date Note: At 63 FR 19060, Apr. 16, 1998,Sec. 92.504 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.505  Sample selection for testing.

    (a) At the start of each model year, the manufacturer 
orremanufacturer will begin to randomly select locomotives or 
locomotiveengines from each engine family for production line testing at 
a rateof one percent. Each locomotive or locomotive engine will be 
selectedfrom the end of the production line. Testing shall be 
performedthroughout the entire model year to the extent possible.
    (1) The required sample size for an engine family is the lesser 
offive tests per model year or one percent of projected 
annualproduction, with a minimum sample size for an engine family of 
onetest per model year provided that no engine tested fails to 
meetapplicable emission standards.
    (2) Manufacturers and remanufacturers may elect to test 
additionallocomotives or locomotive engines. All additional locomotives 
orlocomotive engines must be tested in accordance with the 
applicabletest procedures of this part.
    (b) The manufacturer or remanufacturer must assemble the 
testlocomotives or locomotive engines using the same mass 
productionprocess that will be used for locomotives or locomotive 
engines to beintroduced into commerce.
    (c) No quality control, testing, or assembly procedures will beused 
on any test locomotive or locomotive engine or any portionthereof, 
including parts and subassemblies, that have not been or willnot be used 
during the production and assembly of all otherlocomotives or locomotive 
engines of that family, except with theapproval of the Administrator.



Sec. 92.506  Test procedures.

    (a)(1) For locomotives and locomotive engines subject to 
theprovisions of this subpart, the prescribed test procedures are 
thoseprocedures described in subpart B of this part, except as provided 
inthis section.
    (2) The Administrator may, on the basis of a written applicationby a 
manufacturer or remanufacturer, prescribe test procedures otherthan 
those specified in paragraph (a)(1) of this section for anylocomotive or 
locomotive engine he/she determines is not susceptibleto satisfactory 
testing using procedures specified in paragraph (a)(1)of this section.
    (3) If test procedures other than those in subpart B were used 
incertification of the engine family being tested under this 
subpart(other than alternate test procedures necessary for testing of 
adevelopment engine instead of a low mileage locomotive or a low 
hourengine under Sec. 92.9), the manufacturer or remanufacturershall 
use the test procedures used in certification for productionline 
testing.
    (b)(1) The manufacturer or remanufacturer may not adjust, 
repair,prepare, modify, or perform any emission test on, any test 
locomotiveor locomotive engine unless this adjustment, repair, 
preparation,modification and/or test is documented in the manufacturer's 
orremanufacturer's locomotive or engine assembly and 
inspectionprocedures and is actually performed by

[[Page 510]]

the manufacturer orremanufacturer or unless this adjustment, repair, 
preparation,modification and/or test is required or permitted under this 
subpartor is approved in advance by the Administrator.
    (2) Any adjustable locomotive or locomotive engine parameter mustbe 
set to values or positions that are within the range recommended tothe 
ultimate purchaser.
    (3) The Administrator may adjust or require to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification and production line testing, to anysetting 
within the specified adjustable range of that parameter, asdetermined by 
the Administrator, prior to the performance of any test.
    (c) Service Accumulation/Green Engine factor. Themanufacturer or 
remanufacturer shall accumulate service on thelocomotives and locomotive 
engines to be tested up to 300 hours ofoperation. In lieu of conducting 
such service accumulation, themanufacturer or remanufacturer may 
establish a Green Engine factor foreach regulated pollutant for each 
engine family to be used incalculating emissions test results. The 
manufacturer or remanufacturershall obtain the approval of the 
Administrator prior to using a GreenEngine factor.
    (d) The manufacturer or remanufacturer may not perform 
anymaintenance on test locomotives or locomotive engines after 
selectionfor testing.
    (e) If a locomotive or locomotive engine is shipped to a 
facilityother than the production facility for production line testing, 
and anadjustment or repair is necessary because of such shipment, 
thelocomotive or locomotive engine manufacturer or remanufacturer 
mustperform the necessary adjustment or repair only after the initial 
testof the locomotive or locomotive engine, except where the 
Administratorhas determined that the test would be impossible to perform 
or wouldpermanently damage the locomotive engine.
    (f) If a locomotive or locomotive engine cannot complete theservice 
accumulation, if applicable, or an emission test, because of 
amalfunction, the manufacturer or remanufacturer may request that 
theAdministrator authorize either the repair of that locomotive 
orlocomotive engine or its deletion from the test sequence.
    (g) Retesting. (1) If a locomotive or locomotive enginemanufacturer 
or remanufacturer determines that any production lineemission test of a 
locomotive or locomotive engine is invalid, thelocomotive or locomotive 
engine must be retested in accordance withthe requirements of this 
subpart. Emission results from all tests mustbe reported to EPA, 
including test results the manufacturer orremanufacturer determines are 
invalid. The locomotive or locomotiveengine manufacturer or 
remanufacturer must also include a detailedexplanation of the reasons 
for invalidating any test in the quarterlyreport required in Sec. 
92.508(e). In the event a retest isperformed, a request may be made to 
the Administrator, within ten daysof the end of the production quarter, 
for permission to substitute theafter-repair test results for the 
original test results. TheAdministrator will either affirm or deny the 
request by the locomotiveor locomotive engine manufacturer or 
remanufacturer within ten workingdays from receipt of the request.

[63 FR 18998, Apr. 16, 1998, as amended at 65 FR 73331, Dec.29, 1999]



Sec. 92.507  Sequence of testing.

    If one or more locomotives or locomotive engines fail a 
productionline test, then the manufacturer or remanufacturer must test 
twoadditional locomotives or locomotive engines from the next 
fifteenproduced in that engine family, for each locomotive or 
locomotiveengine that fails.



Sec. 92.508  Calculation and reporting of test results.

    (a) Manufacturers and remanufacturers shall calculate initial 
testresults using the applicable test procedure specified inSec. 
92.506(a). These results must also include the greenengine factor, if 
applicable. The manufacturer or remanufacturer shallround these results, 
in accordance with ASTM E29-93a(incorporated by reference at Sec. 
92.5),

[[Page 511]]

to the numberof decimal places contained in the applicable emission 
standardexpressed to one additional significant figure.
    (b) Final test results shall be calculated by summing the 
initialtest results derived in paragraph (a) of this section for each 
testlocomotive or locomotive engine, dividing by the number of 
testsconducted on the locomotive or locomotive engine, and rounding 
inaccordance with ASTM E29-93a (incorporated by reference atSec. 92.5) 
to the same number of decimal places contained inthe applicable standard 
expressed to one additional significantfigure.
    (c) Manufacturers and remanufacturers shall calculate the finaltest 
results for each test locomotive or locomotive engine by applyingthe 
appropriate deterioration factors, derived in the certificationprocess 
for the engine family, to the final test results, and roundingin 
accordance with ASTM E 29-93a (incorporated by reference atSec. 92.5) 
to the same number of decimal places contained inthe applicable standard 
expressed to one additional significantfigure.
    (d) If, subsequent to an initial failure of a production linetest, 
the average of the test results for the failed locomotive orlocomotive 
engine and the two additional locomotives or locomotiveengines tested, 
is greater than any applicable emission standard orFEL, the engine 
family is deemed to be in non-compliance withapplicable emission 
standards, and the manufacturer or remanufacturermust notify EPA within 
2 working days of such noncompliance.
    (e) Within 45 calendar days of the end of each quarter, 
eachmanufacturer or remanufacturer must submit to the Administrator 
areport which includes the following information:
    (1) The location and description of the manufacturer's 
orremanufacturer's emission test facilities which were utilized 
toconduct testing reported pursuant to this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each 
enginefamily was tested;
    (4) A description of the test locomotives or locomotive engines;
    (5) For each test conducted:
    (i) A description of the test locomotive or locomotive 
engine,including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number;
    (D) Number of megawatt-hours (or miles if applicable) of 
serviceaccumulated on locomotive or locomotive engine prior to testing; 
and
    (E) Description of green engine factor; how it is determined andhow 
it is applied;
    (ii) Location(s) where service accumulation was conducted 
anddescription of accumulation procedure and schedule, if applicable;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding, and final test results for all 
productionline emission tests conducted, whether valid or invalid, and 
thereason for invalidation of any test results, if applicable;
    (iv) A complete description of any adjustment, modification,repair, 
preparation, maintenance, and testing which was performed onthe test 
locomotive or locomotive engine, has not been reportedpursuant to any 
other paragraph of this subpart, and will not beperformed on other 
production locomotive or locomotive engines;
    (v) Any other information the Administrator may request relevantto 
the determination whether the new locomotives or locomotive enginesbeing 
manufactured or remanufactured by the manufacturer orremanufacturer do 
in fact conform with the regulations with respect towhich the 
certificate of conformity was issued;
    (6) For each failed locomotive or locomotive engine as defined 
inSec. 92.510(a), a description of the remedy and test resultsfor all 
retests as required by Sec. 92.512(g);
    (7) The date of the end of the locomotive or locomotive 
enginemanufacturer's model year production for each engine family 
tested;and
    (8) The following signed statement and endorsement by anauthorized 
representative of the manufacturer or remanufacturer:


[[Page 512]]


    This report is submitted pursuant to Sections 213 and 208 ofthe 
Clean Air Act. This production line testing program was conductedin 
complete conformance with all applicable regulations under 40 CFRpart 
92. No emission-related changes to production processes orquality 
control procedures for the engine family tested have been madeduring 
this production line testing program that affect locomotives 
orlocomotive engines from the production line. All data and 
informationreported herein is, to the best of (Company Name) knowledge, 
true andaccurate. I am aware of the penalties associated with violations 
ofthe Clean Air Act and the regulations thereunder. (Authorized 
CompanyRepresentative.)

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]



Sec. 92.509  Maintenance of records; submittal of information.

    (a) The manufacturer or remanufacturer for any new locomotive 
orlocomotive engine subject to any of the provisions of this subpartmust 
establish, maintain, and retain the following adequatelyorganized and 
indexed records:
    (1) General records. A description of all equipment used totest 
engines in accordance with Sec. 92.503. The equipmentrequirements in 
subpart B of this part apply to tests performed underthis subpart.
    (2) Individual records. These records pertain to each productionline 
test or audit conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test or audit;
    (ii) The method by which the green engine factor was calculated 
orthe number of hours of service accumulated on the test locomotive 
orlocomotive engine when the test began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the production line test or audit;
    (iv) A record and description of any adjustment, repair,preparation 
or modification performed on test locomotives orlocomotive engines, 
giving the date, associated time, justification,name(s) of the 
authorizing personnel, and names of all supervisorypersonnel responsible 
for the conduct of the action;
    (v) If applicable, the date the locomotive or locomotive enginewas 
shipped from the assembly plant, associated storage facility orport 
facility, and the date the locomotive or locomotive engine wasreceived 
at the testing facility;
    (vi) A complete record of all emission tests or audits 
performedpursuant to this subpart (except tests performed directly by 
EPA),including all individual worksheets and/or other 
documentationrelating to each test, or exact copies thereof, in 
accordance with therecord requirements specified in subpart B of this 
part;
    (vii) A brief description of any significant events during 
testingnot otherwise described under this paragraph (a)(2) of this 
section ,commencing with the test locomotive or locomotive engine 
selectionprocess and including such extraordinary events as engine 
damageduring shipment.
    (3) The manufacturer or remanufacturer must establish, maintainand 
retain general records, pursuant to paragraph (a)(1) of thissection, for 
each test cell that can be used to perform emissiontesting under this 
subpart.
    (b) The manufacturer or remanufacturer must retain all 
recordsrequired to be maintained under this subpart for a period of 
eight (8)years after completion of all testing. Records may be retained 
as hardcopy (i.e., on paper) or reduced to microfilm, floppy disk, or 
someother method of data storage, depending upon the manufacturer's 
orremanufacturer's record retention procedure; provided, that in 
everycase, all the information contained in the hard copy is retained.
    (c) The manufacturer or remanufacturer must, upon request by 
theAdministrator, submit the following information with regard 
tolocomotive or locomotive engine production:
    (1) Projected production for each configuration within each 
enginefamily for which certification has been requested and/or approved.
    (2) Number of locomotives or engines, by configuration andassembly 
plant, scheduled for production.
    (d) Nothing in this section limits the Administrator's discretionto 
require a manufacturer or remanufacturer to establish, maintain,retain 
or submit to EPA information not specified by this section.

[[Page 513]]

    (e) All reports, submissions, notifications, and requests 
forapproval made under this subpart must be addressed to: Group 
Manager,Engine Compliance Programs Group, Engine Programs and 
ComplianceDivision 6403-J, U.S. Environmental Protection Agency, 
1200Pennsylvania Ave, NW., Washington, DC 20460.
    (f) The manufacturer or remanufacturer must electronically submitthe 
results of its production line testing or auditing using an 
EPAinformation format.



Sec. 92.510  Compliance with criteria for production line testing.

    (a) A failed locomotive or locomotive engine is one whose finaltest 
results pursuant to Sec. 92.508(c), for one or more ofthe applicable 
pollutants, exceed the applicable emission standard orFEL.
    (b) An engine family is deemed to be in noncompliance, forpurposes 
of this subpart, if at any time throughout the model year,the average of 
an initial failed locomotive or locomotive engine andthe two additional 
locomotives or locomotive engines tested, isgreater than any applicable 
emission standard or FEL.



Sec. 92.511  Remanufactured locomotives: installation audit requirements.

    (a) Remanufacturers of locomotives or locomotive engines shallaudit 
the remanufacture of locomotives covered by its certificate(s)of 
conformity for proper components, component settings and 
componentinstallations on randomly chosen locomotives in an engine 
family. Suchaudits shall be conducted in compliance with the 
requirements of thissection.
    (1) The remanufacturer must ensure that all emission 
relatedcomponents are properly installed on the locomotive or 
locomotiveengine.
    (2) The remanufacturer must ensure that all emission 
relatedcomponents are set to the proper specification as indicated in 
theremanufacture instructions.
    (3) Remanufacturers are allowed to submit audits performed by 
theowners or operators of the locomotives, provided the audits 
areperformed in accordance with the provisions of this section.
    (b)(1) The required initial sample size (i.e., the sample size ifno 
failures occur) for each remanufacturer is five percent of 
theremanufacturer's annual sales per model year per installer, with 
amaximum number of ten per engine family per installer.
    (2) The locomotives audited shall be randomly selected after 
theremanufacture is complete. The Administrator may allow the 
locomotivesto be selected prior to the completion of the remanufacture, 
wheresuch preselection would not have the potential to affect the manner 
inwhich the locomotive was remanufactured (e.g., where the installer 
isnot aware of the selection prior to the completion of 
theremanufacture).
    (c) The remanufactured locomotive or locomotive engine mayaccumulate 
no more than 10,000 miles prior to an audit.
    (d) A failed remanufactured locomotive or locomotive engine is oneon 
which any remanufacture components are found to be improperlyinstalled, 
improperly adjusted or incorrectly used.
    (e) If a remanufactured locomotive or locomotive engine fails 
anaudit, then the remanufacturer must audit two additional locomotivesor 
locomotive engines from the next ten remanufactured in that enginefamily 
by that installer.
    (f) An engine family is determined to have failed an audit, if atany 
time during the model year, the remanufacturer determines that thethree 
locomotives audited are found to have had any improperlyinstalled, 
improperly adjusted or incorrectly used components. Theremanufacturer 
must notify EPA within 2 working days of adetermination of an engine 
family audit failure.
    (g) Within 45 calendar days of the end of each quarter, 
eachremanufacturer must submit to the Administrator a report 
whichincludes the following information:
    (1) The location and description of the remanufacturer's 
auditfacilities which were utilized to conduct auditing reported 
pursuantto this section;
    (2) Total production and sample size for each engine family;

[[Page 514]]

    (3) The applicable standards and/or FELs against which eachengine 
family was audited;
    (4) For each audit conducted:
    (i) A description of the audit locomotive or locomotive 
engine,including:
    (A) Configuration and engine family identification;
    (B) Year, make, build date, and remanufacturer date; and
    (C) Engine identification number;
    (ii) Any other information the Administrator may request relevantto 
the determination whether the new locomotives or locomotive enginesbeing 
manufactured or remanufactured by the remanufacturer do in factconform 
with the regulations in this part with respect to which thecertificate 
of conformity was issued;
    (5) For each failed locomotive or locomotive engine as defined 
inparagraph (d) of this section, a description of the remedy as 
requiredby Sec. 92.512(g);
    (6) The following signed statement and endorsement by anauthorized 
representative of the remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of 
theClean Air Act. This production line auditing program was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
part92. No emission-related changes to production processes or 
qualitycontrol procedures for the engine family audited have been made 
duringthis production line auditing program that affect locomotives 
orlocomotive engines from the production line. All data and 
informationreported herein is, to the best of (Company Name) knowledge, 
true andaccurate. I am aware of the penalties associated with violations 
ofthe Clean Air Act and the regulations thereunder. (Authorized 
CompanyRepresentative.)

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July13, 2005]



Sec. 92.512  Suspension and revocation of certificates of conformity.

    (a)(1) The certificate of conformity is suspended with respect toany 
locomotive or locomotive engine that fails a production line 
testpursuant to Sec. 92.510(a), effective from the time thetesting of 
that locomotive or locomotive engine is completed.
    (2) The certificate of conformity is suspended with respect to 
anylocomotive or locomotive engine that fails an audit pursuant toSec. 
92.511(d), effective from the time that auditing ofthat locomotive or 
locomotive engine is completed.
    (b)(1) The Administrator may suspend the certificate of 
conformityfor an engine family which is in noncompliance pursuant 
toSec. 92.510(b), thirty days after the engine family isdeemed to be in 
noncompliance.
    (2) The Administrator may suspend the certificate of conformityfor 
an engine family which is determined to have failed an auditpursuant to 
Sec. 92.511(f). This suspension will not occurbefore thirty days after 
the engine family is deemed to be innoncompliance.
    (c) If the results of testing or auditing pursuant to 
theseregulations indicate that locomotives or engines of a 
particularfamily produced at one plant of a manufacturer or 
remanufacturer donot conform to the regulations with respect to which 
the certificateof conformity was issued, the Administrator may suspend 
thecertificate of conformity with respect to that family for 
locomotivesor locomotive engines manufactured or remanufactured by 
themanufacturer or remanufacturer at all other plants.
    (d) The Administrator may suspend a certificate of conformity forany 
locomotive or locomotive engine family in whole or in part if:
    (1) The manufacturer or remanufacturer fails to comply with any 
ofthe requirements of this subpart.
    (2) The manufacturer or remanufacturer submits false or 
incompleteinformation in any report or information provided to the 
Administratorunder this subpart.
    (3) The manufacturer or remanufacturer renders inaccurate any 
testdata submitted under this subpart.
    (4) An EPA enforcement officer is denied the opportunity toconduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct 
activitiesauthorized in Sec. 92.504 for any reason.
    (e) The Administrator shall notify the manufacturer orremanufacturer 
in writing of any suspension or revocation of acertificate of conformity 
in whole or in part; a suspension orrevocation

[[Page 515]]

is effective upon receipt of such notification orthirty days from the 
time an engine family is deemed to be innoncompliance under Sec. Sec. 
92.508(d), 92.510(a),92.510(b) or 92.511(f), whichever is earlier, 
except that thecertificate is immediately suspended with respect to any 
failedlocomotives or locomotive engines as provided for in paragraph (a) 
ofthis section.
    (f) The Administrator may revoke a certificate of conformity foran 
engine family when the certificate has been suspended pursuant 
toparagraph (b) or (c) of this section if the remedy is one requiring 
adesign change or changes to the locomotive, engine and/or 
emissioncontrol system as described in the application for certification 
ofthe affected engine family.
    (g) Once a certificate has been suspended for a failed locomotiveor 
locomotive engine, as provided for in paragraph (a) of thissection, the 
manufacturer or remanufacturer must take the followingactions before the 
certificate is reinstated for that failedlocomotive or locomotive 
engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the locomotive or locomotive engine conformsto 
applicable standards or family emission limits by retesting, 
orreauditing if applicable, the locomotive or locomotive engine 
inaccordance with this part; and
    (3) Submit a written report to the Administrator, after 
successfulcompletion of testing, or auditing if applicable, on the 
failedlocomotive or locomotive engine, which contains a description of 
theremedy and test (or audit) results for each locomotive or engine 
inaddition to other information that may be required by this part.
    (h) Once a certificate for a failed engine family has beensuspended 
pursuant to paragraph (b) or (c) of this section, themanufacturer or 
remanufacturer must take the following actions beforethe Administrator 
will consider reinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the locomotives or locomotiveengines, 
describes the remedy, including a description of any qualitycontrol and/
or quality assurance measures to be taken by themanufacturer or 
remanufacturer to prevent future occurrences of theproblem, and states 
the date on which the remedies will beimplemented.
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theregulations of 
this part by testing, or auditing if applicable,locomotives or engines 
selected from normal production runs of thatengine family. Such testing 
(or auditing) must comply with theprovisions of this subpart. If the 
manufacturer or remanufacturerelects to continue testing, or auditing if 
applicable, individuallocomotives or engines after suspension of a 
certificate, thecertificate is reinstated for any locomotive or engine 
actuallydetermined to be in conformance with the applicable standards 
orfamily emission limits through testing, or auditing if applicable, 
inaccordance with the applicable test procedures, provided that 
theAdministrator has not revoked the certificate pursuant to 
paragraph(f) of this section.
    (i) Once the certificate has been revoked for an engine family, 
ifthe manufacturer or remanufacturer desires to continue 
introductioninto commerce of a modified version of that family, the 
followingactions must be taken before the Administrator may issue a 
certificatefor that modified family:
    (1) If the Administrator determines that the change(s) inlocomotive 
or engine design may have an effect on emission 
performancedeterioration, the Administrator shall notify the 
manufacturer orremanufacturer, within five working days after receipt of 
the reportin paragraph (g) of this section, whether subsequent testing 
orauditing if applicable, under this subpart will be sufficient 
toevaluate the change or changes or whether additional testing 
orauditing will be required; and
    (2) After implementing the change or changes intended to remedythe 
nonconformity, the manufacturer or remanufacturer must demonstratethat 
the modified engine family does in fact conform with theregulations of 
this part by testing, or auditing if applicable,locomotives or engines 
selected

[[Page 516]]

from normal production runs ofthat engine family. When both of these 
requirements are met, theAdministrator shall reissue the certificate or 
issue a newcertificate, as the case may be, to include that family. If 
thissubsequent testing, or auditing if applicable, reveals failing 
datathe revocation remains in effect.
    (j) At any time subsequent to an initial suspension of acertificate 
of conformity for a test or audit locomotive or enginepursuant to 
paragraph (a) of this section, but not later than 30 days(or such other 
period as may be allowed by the Administrator) afternotification of the 
Administrator's decision to suspend or revoke acertificate of conformity 
in whole or in part pursuant to paragraphs(b), (c), or (f) of this 
section, a manufacturer or remanufacturer mayrequest a hearing as to 
whether the tests or audits have been properlyconducted or any sampling 
methods have been properly applied.
    (k) Any suspension of a certificate of conformity under 
paragraphs(a), (b), (c) and (d) of this section:
    (1) Shall be made only after the manufacturer or 
remanufacturerconcerned has been offered an opportunity for a hearing 
conducted inaccordance with Sec. Sec. 92.513, 92.514, and 92.515 and
    (2) Need not apply to locomotives or engines no longer in 
thepossession of the manufacturer or remanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section or voids a certificate 
ofconformity under Sec. 92.215, and prior to the commencementof a 
hearing under Sec. 92.513, if the manufacturer orremanufacturer 
demonstrates to the Administrator's satisfaction thatthe decision to 
suspend, revoke, or void the certificate was based onerroneous 
information, the Administrator shall reinstate thecertificate.
    (m) To permit a manufacturer or remanufacturer to avoid storingnon-
test locomotives or locomotive engines while conducting 
subsequenttesting or auditing of the noncomplying family, a manufacturer 
orremanufacturer may request that the Administrator 
conditionallyreinstate the certificate for that family. The 
Administrator mayreinstate the certificate subject to the following 
condition: themanufacturer or remanufacturer must commit to recall all 
locomotivesor locomotive engines of that family produced from the time 
thecertificate is conditionally reinstated if the family fails 
subsequenttesting, or auditing if applicable, and must commit to remedy 
anynonconformity at no expense to the owner.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July13, 2005]



Sec. 92.513  Request for public hearing.

    (a) If the manufacturer or remanufacturer disagrees with 
theAdministrator's decision to suspend or revoke a certificate 
ordisputes the basis for an automatic suspension pursuant toSec. 
92.512(a), the manufacturer or remanufacturer mayrequest a public 
hearing.
    (b) The manufacturer's or remanufacturer's request shall be 
filedwith the Administrator not later than 30 days after 
theAdministrator's notification of his or her decision to suspend 
orrevoke, unless otherwise specified by the Administrator. 
Themanufacturer or remanufacturer shall simultaneously serve two 
copiesof this request upon the Director of the Engine Programs 
andCompliance Division, Office of Mobile Sources and file two copies 
withthe Hearing Clerk of the Agency. Failure of the manufacturer 
orremanufacturer to request a hearing within the time 
providedconstitutes a waiver of the right to a hearing. Subsequent to 
theexpiration of the period for requesting a hearing as of right, 
theAdministrator may, in his or her discretion and for good cause 
shown,grant the manufacturer or remanufacturer a hearing to contest 
thesuspension or revocation.
    (c) A manufacturer or remanufacturer shall include in the requestfor 
a public hearing:
    (1) A statement as to which configuration(s) within a family is tobe 
the subject of the hearing;
    (2) A concise statement of the issues to be raised by 
themanufacturer or remanufacturer at the hearing, except that in the 
caseof the hearing requested under Sec. 92.512(j), the hearingis 
restricted to the following issues:
    (i) Whether tests or audits have been properly 
conducted(specifically, whether the tests were conducted in

[[Page 517]]

accordancewith applicable regulations under this part and whether test 
equipmentwas properly calibrated and functioning);
    (ii) Whether there exists a basis for distinguishing locomotivesor 
locomotive engines produced at plants other than the one from 
whichlocomotives or locomotive engines were selected for testing 
orauditing which would invalidate the Administrator's decision 
underSec. 92.512(c));
    (3) A statement specifying reasons why the manufacturer 
orremanufacturer believes it will prevail on the merits of each of 
theissues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
orremanufacturer's position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.



Sec. 92.514  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law 
Judgeappointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (b) The Judicial Officer shall be an officer or employee of 
theAgency appointed as a Judicial Officer by the Administrator, 
pursuantto this section, who shall meet the qualifications and 
performfunctions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent 
ortemporary employee of the Agency who performs other duties for 
theAgency. The Judicial Officer shall not be employed by the Office 
ofEnforcement or have any connection with the preparation orpresentation 
of evidence for a hearing held pursuant to this subpart.The Judicial 
Officer shall be a graduate of an accredited law schooland a member in 
good standing of a recognized Bar Association of anystate or the 
District of Columbia.
    (2) Functions. The Administrator may consult with theJudicial 
Officer or delegate all or part of the Administrator'sauthority to act 
in a given case under this section to a JudicialOfficer, provided that 
this delegation does not preclude the JudicialOfficer from referring any 
motion or case to the Administrator whenthe Judicial Officer determines 
such referral to be appropriate.
    (c) For the purposes of this section, one or more JudicialOfficers 
may be designated by the Administrator. As work requires, aJudicial 
Officer may be designated to act for the purposes of aparticular case.
    (d) Summary decision. (1) In the case of a hearing requestedunder 
Sec. 92.512(j), when it clearly appears from the dataand other 
information contained in the request for a hearing that nogenuine and 
substantial question of fact or law exists with respect tothe issues 
specified in Sec. 92.513(c)(2), the Administratormay enter an order 
denying the request for a hearing and reaffirmingthe original decision 
to suspend or revoke a certificate ofconformity.
    (2) In the case of a hearing requested under Sec. 92.513to 
challenge a suspension of a certificate of conformity for thereason(s) 
specified in Sec. 92.512(d), when it clearlyappears from the data and 
other information contained in the requestfor the hearing that no 
genuine and substantial question of fact orlaw exists with respect to 
the issue of whether the refusal to complywith this subpart was caused 
by conditions and circumstances outsidethe control of the manufacturer 
or remanufacturer, the Administratormay enter an order denying the 
request for a hearing and suspendingthe certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of thissection 
has the force and effect of a final decision of theAdministrator, as 
issued pursuant to Sec. 92.516.
    (4) If the Administrator determines that a genuine and 
substantialquestion of fact or law does exist with respect to any of the 
issuesreferred to in paragraphs (d)(1) and (d)(2) of this section, 
theAdministrator shall grant the request for a hearing and publish 
anotice of public hearing in the Federal Register or by suchother means 
as the Administrator finds appropriate to provide noticeto the public.
    (e) Filing and service. (1) An original and two copies ofall 
documents or papers required or permitted to be filed pursuant tothis 
section and Sec. 92.513(c)

[[Page 518]]

must be filed with theHearing Clerk of the Agency. Filing is considered 
timely if mailed, asdetermined by the postmark, to the Hearing Clerk 
within the timeallowed by this section and Sec. 92.513(b). If filing is 
tobe accomplished by mailing, the documents must be sent to the 
addressset forth in the notice of public hearing referred to in 
paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented 
inwritten form. Copies of written testimony will be served upon 
allparties as soon as practicable prior to the start of the hearing. 
Acertificate of service will be provided on or accompany each documentor 
paper filed with the Hearing Clerk. Documents to be served upon 
theDirector of the Engine Programs and Compliance Division must be 
sentby registered mail to: Director, Engine Programs and 
ComplianceDivision 6403-J, U.S. Environmental Protection Agency, 
1200Pennsylvania Ave., NW., Washington, DC 20460. Service by 
registeredmail is complete upon mailing.
    (f) Computation of time. (1) In computing any period of 
timeprescribed or allowed by this section, except as otherwise 
provided,the day of the act or event from which the designated period of 
timebegins to run is not included. Saturdays, Sundays, and federal 
legalholidays are included in computing the period allowed for the 
filingof any document or paper, except that when the period expires on 
aSaturday, Sunday, or federal legal holiday, the period is extended 
toinclude the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted to do an act is computed from the time of service, exceptthat 
when service is accomplished by mail, three days will be added tothe 
prescribed period.
    (g) Consolidation. The Administrator or the PresidingOfficer in his 
or her discretion may consolidate two or moreproceedings to be held 
under this section for the purpose of resolvingone or more issues 
whenever it appears that consolidation willexpedite or simplify 
consideration of these issues. Consolidation doesnot affect the right of 
any party to raise issues that could have beenraised if consolidation 
had not occurred.
    (h) Hearing date. To the extent possible hearings underSec. 92.513 
will be scheduled to commence within 14 days ofreceipt of the request 
for a hearing.



Sec. 92.515  Hearing procedures.

    The procedures provided in Sec. 86.1014-84(i)through (s) of this 
chapter apply for hearings requested pursuant toSec. 92.513 regarding 
suspension, revocation, or voiding ofa certificate of conformity.



Sec. 92.516  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84(t)through (aa) of this 
chapter apply for appeals filed with respect tohearings held pursuant to 
Sec. 92.515.



Sec. 92.517  Treatment of confidential information.

    Except for information required by Sec. 92.508(e)(2) andquarterly 
emission test results described in Sec. 92.508(e),information submitted 
pursuant to this subpart shall be made availableto the public by EPA 
notwithstanding any claim of confidentiality madeby the submitter. The 
provisions for treatment of confidentialinformation described in Sec. 
92.4 apply to the informationrequired by Sec. 92.508(e)(2) and all 
other informationsubmitted pursuant to this subpart.



                    Subpart G_In-Use Testing Program



Sec. 92.601  Applicability.

    The requirements of this subpart are applicable to allmanufacturers 
and remanufacturers of locomotives subject to theprovisions of subpart A 
of this part, including all locomotivespowered by any locomotive engines 
subject to the provisions of subpartA of this part.



Sec. 92.602  Definitions.

    Except as otherwise provided, the definitions in subpart A of 
thispart apply to this subpart.



Sec. 92.603  General provisions.

    (a) EPA shall annually identify engine families and 
configurationswithin families on which the manufacturer or 
remanufacturer mustconduct in-use

[[Page 519]]

emissions testing pursuant to the requirements ofthis section.
    (1) Manufacturers and remanufacturers shall test one 
locomotiveengine family each year for which it has received a 
certificate ofconformity from EPA. Where a manufacturer holds 
certificates ofconformity for both freshly manufactured and 
remanufactured locomotiveengine families, the Administrator may require 
the manufacturer totest one freshly manufactured engine family and one 
remanufacturedengine family. The Administrator may require a 
manufacturer orremanufacturer to test additional engine families if he/
she has reasonto believe that locomotives in an engine family do not 
comply withemission standards in use.
    (2) For engine families of less than 10 locomotives per year, noin-
use testing will be required, unless the Administrator has reasonto 
believe that those engine families are not complying with theapplicable 
emission standards in use.
    (b) Locomotive manufacturers or remanufacturers shall 
performemission testing of a sample of in-use locomotives from an 
enginefamily, as specified in Sec. 92.605. Manufacturers 
orremanufacturers shall submit data from this in-use testing to EPA. 
EPAwill use these data, and any other data available to EPA, to 
determinethe compliance status of classes of locomotives, including 
forpurposes of subpart H of this part, and whether remedial action 
isappropriate.



Sec. 92.604  In-use test procedure.

    (a) Testing conducted under this subpart shall be conducted 
onlocomotives; testing under this subpart shall not be conducted usingan 
engine that is not installed in a locomotive at the time oftesting.
    (b) Locomotives tested under this subpart shall be tested usingthe 
locomotive test procedures outlined in subpart B of this part,except as 
provided in this section.
    (c) The test procedures used for in-use testing shall beconsistent 
with the test procedures used for certification, except forcases in 
which certification testing was not conducted withlocomotive, but with a 
development engine, or other engine. In suchcases, the Administrator 
shall require deviations from thecertification test procedures as 
appropriate, including requiring thatthe test be conducted on a 
locomotive. The Administrator may allow orrequire other alternate 
procedures, with advance approval. For alltesting conducted under this 
subpart, emission rates shall becalculated in accordance with the 
provisions of subpart B of this partthat apply to locomotive testing.
    (d) Any adjustable locomotive or locomotive engine parameter mustbe 
set to values or positions that are within the range specified inthe 
certificate of conformity. If so directed by the Administrator,the 
manufacturer or remanufacturer will set these parameters to 
valuesspecified by the Administrator.
    (e) The Administrator may waive portions or requirements of 
theapplicable test procedure, if any, that are not necessary to 
determinein-use compliance.



Sec. 92.605  General testing requirements.

    (a) Number of locomotives to be tested. The manufacturer 
orremanufacturer shall test in-use locomotives, from an engine 
familyselected by EPA, which have accumulated between one-half and 
three-quarters of the engine family's useful life. The number of 
locomotivesto be tested by a manufacturer or remanufacturer will be 
determined bythe following method:
    (1) A minimum of 2 locomotives per engine family per year for 
eachengine family that reaches the minimum age specified above 
providedthat no locomotive tested fails to meet any applicable standard. 
Foreach failing locomotive, two more locomotives shall be tested 
untilthe total number of locomotives tested equals 10, except as 
providedin paragraph (a)(2) of this section.
    (2) If an engine family has not changed from one year to the nextand 
has certified using carry over emission data and has beenpreviously 
tested under paragraph (a)(1) of this section (and EPA hasnot ordered or 
begun to negotiate remedial action of that family),then only one 
locomotive per engine family per year must be tested. Ifsuch locomotive 
fails to meet applicable standards for any pollutant,testing

[[Page 520]]

for that engine family must be conducted as outlinedunder paragraph 
(a)(1) of this section.
    (b) At the discretion of the Administrator, a locomotive 
orlocomotive engine manufacturer or remanufacturer may test 
morelocomotives than the minima described above or may concede 
failurebefore locomotive number 10.
    (c) The Administrator will consider failure rates, averageemission 
levels and the existence of any defects among other factorsin 
determining whether to pursue remedial action. The Administratormay 
order a recall pursuant to subpart H of this part before testingreaches 
the tenth locomotive.
    (d) Collection of in-use locomotives. The locomotivemanufacturer or 
remanufacturer shall procure in-use locomotives whichhave been operated 
for between one-half and three-quarters of thelocomotive's useful life 
for testing under this subpart. Themanufacturer or remanufacturer shall 
complete testing required by thissection for any engine family before 
useful life of the locomotives inthe engine family passes.



Sec. 92.606  Maintenance, procurement and testing of in-use locomotives.

    (a) A test locomotive must have a maintenance history that 
isrepresentative of actual in-use conditions, and identical orequivalent 
to the manufacturer's or remanufacturer's recommendedemission-related 
maintenance requirements.
    (1) In procuring in-use locomotives for in-use testing, 
amanufacturer or remanufacturer shall question the end users 
regardingthe accumulated usage, maintenance, operating conditions, and 
storageof the test locomotives.
    (2) The selection of test locomotives is made by the manufactureror 
remanufacturer, and is subject to EPA approval. Information used bythe 
manufacturer or remanufacturer to procure locomotives for in-usetesting 
shall be maintained as required in Sec. 92.215.
    (b) The manufacturer or remanufacturer may perform minimal set-to-
spec maintenance on a test locomotive prior to conducting in-usetesting. 
Maintenance may include only that which is listed in theowner's 
instructions for locomotives with the amount of service andage of the 
acquired test locomotive. Documentation of all maintenanceand 
adjustments shall be maintained and retained.
    (c) Results of one valid emission test using the test 
procedureoutlined in subpart B of this part is required for each in-
uselocomotive.
    (d) If in-use testing results show that an in-use locomotive failsto 
comply with any applicable emission standards, the manufacturer 
orremanufacturer shall determine the reason for noncompliance. 
Themanufacturer or remanufacturer must report all determinations 
fornoncompliance in its quarterly in-use test result report pursuant 
toSec. 92.607(a)(11).

    Effective Date Note: At 63 FR 19066, Apr. 16, 1998,Sec. 92.606 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.607  In-use test program reporting requirements.

    (a) The manufacturer or remanufacturer shall submit to 
theAdministrator within three (3) months of completion of testing 
allemission testing results generated from the in-use testing 
program.The following information must be reported for each locomotive 
tested:
    (1) Engine family, and configuration;
    (2) Locomotive and engine models;
    (3) Locomotive and engine serial numbers;
    (4) Date of manufacture and/or remanufacture(s), as applicable;
    (5) Megawatt-hours of use (or miles, as applicable);
    (6) Date and time of each test attempt;
    (7) Results (if any) of each test attempt;
    (8) Results of all emission testing;
    (9) Summary of all maintenance and/or adjustments performed;
    (10) Summary of all modifications and/or repairs;
    (11) Determinations of noncompliance; and
    (12) The following signed statement and endorsement by anauthorized 
representative of the manufacturer or remanufacturer:


[[Page 521]]


    This report is submitted pursuant to Sections 213 and 208 ofthe 
Clean Air Act. This in-use testing program was conducted incomplete 
conformance with all applicable regulations under 40 CFR part92. All 
data and information reported herein is, to the best of(Company Name) 
knowledge, true and accurate. I am aware of thepenalties associated with 
violations of the Clean Air Act and theregulations thereunder. 
(Authorized Company Representative.)

    (b) The manufacturer or remanufacturer shall report to 
theAdministrator within three (3) months of completion of testing 
thefollowing information for each engine family tested:
    (1) The serial numbers of all locomotive that were excluded fromthe 
test sample because they did not meet the maintenance requirementsof 
Sec. 92.606;
    (2) The owner of each locomotive identified in paragraph (b)(1) 
ofthis section (or other entity responsible for the maintenance of 
thelocomotive); and
    (3) The specific reasons why the locomotives were excluded fromthe 
test sample.
    (c) The manufacturer or remanufacturer must submit, via floppydisk, 
the information outlined in paragraphs (a) and (b) of thissection using 
a pre-approved information heading. The Administratormay exempt 
manufacturers or remanufacturers from this requirement uponwritten 
request with supporting justification.
    (d) All testing reports and requests for approvals made under 
thissubpart shall be addressed to: Group Manager, Engine 
CompliancePrograms Group, Engine Programs and Compliance Division, 
U.S.Environmental Protection Agency, 6403-J, 1200 PennsylvaniaAve., NW., 
Washington, DC 20460.



                      Subpart H_Recall Regulations



Sec. 92.701  Applicability.

    The requirements of subpart H of this part are applicable to 
allmanufacturers and remanufacturers of locomotives and 
locomotiveengines subject to the provisions of subpart A of this part.



Sec. 92.702  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.703  Voluntary emissions recall.

    (a) Prior to an EPA ordered recall, a manufacturer orremanufacturer 
may perform (without petition) a voluntary emissionsrecall pursuant to 
regulations in subpart E of this part. Suchmanufacturer or 
remanufacturer is subject to the reportingrequirements in subpart E of 
this part.
    (b) If a determination of nonconformity with the requirements 
ofsection 213 of the Act is made (i.e. if EPA orders a recall under 
theprovisions of section 207(c)), the manufacturer(s) 
orremanufacturer(s) will not have the option of an alternate 
remedialaction and an actual recall would be required.



Sec. 92.704  Notice to manufacturer or remanufacturer of nonconformity;submission of remedial plan.

    (a) The manufacturer or remanufacturer will be notified wheneverthe 
Administrator has determined that a substantial number of a classor 
category of locomotives or locomotive engines produced by 
thatmanufacturer or remanufacturer, although properly maintained and 
used,do not conform to the regulations prescribed under the Act in 
effectduring, and applicable to the model year of such locomotives 
orlocomotive engines. The notification will include a description ofeach 
class or category of locomotives or locomotive enginesencompassed by the 
determination of nonconformity, will give thefactual basis for the 
determination of nonconformity (exceptinformation previously provided 
the manufacturer or remanufacturer bythe Agency), and will designate a 
date, no sooner than 45 days fromthe date of receipt of such 
notification, by which the manufacturer orremanufacturer shall have 
submitted a plan to remedy thenonconformity.
    (b) Unless a hearing is requested pursuant toSec. 92.709, the 
remedial plan shall be submitted to theAdministrator within the time 
limit specified in the Administrator'snotification, provided that the 
Administrator may grant a manufactureror remanufacturer an extension 
upon good cause shown.
    (c) If a manufacturer or remanufacturer requests a public 
hearingpursuant to Sec. 92.709, unless as a result of such

[[Page 522]]

hearing the Administrator withdraws his determination ofnonconformity, 
the manufacturer or remanufacturer shall submit theremedial plan within 
30 days of the end of such hearing.



Sec. 92.705  Remedial plan.

    (a) When any manufacturer or remanufacturer is notified by 
theAdministrator that a substantial number of any class or category 
oflocomotives or locomotive engines, although properly maintained 
andused, do not conform to the applicable regulations of this 
part(including emission standards or family emission limits), 
themanufacturer or remanufacturer shall submit a plan to 
theAdministrator to remedy such nonconformity. The plan shall contain 
thefollowing:
    (1) A description of each class or category of locomotive 
orlocomotive engine to be recalled including the year(s) of 
manufactureor remanufacture, the make, the model, the calendar year and 
suchother information as may be required to identify the locomotives 
orlocomotive engines to be recalled.
    (2) A description of the specific modifications, 
alterations,repairs, corrections, adjustments or other changes to be 
made to bringthe locomotives or locomotive engines into conformity, 
including abrief summary of the data and technical studies which support 
themanufacturer's or remanufacturer's decision as to the 
particularremedial changes to be used in correcting the nonconformity.
    (3) A description of the method by which the manufacturer 
orremanufacturer will determine the names and addresses of locomotive 
orlocomotive engine owners.
    (4) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer or remanufacturer conditions eligibility 
forrepair under the remedial plan, an explanation of the 
manufacturer'sor remanufacturer's reasons for imposing any such 
condition, and adescription of the proof to be required of a locomotive 
or locomotiveengine owner to demonstrate compliance with any such 
condition.Eligibility may not be denied solely on the basis that the 
locomotiveor locomotive engine owner used parts not manufactured 
orremanufactured by the original locomotive or locomotive 
enginemanufacturer or remanufacturer, or had repairs not performed by 
suchmanufacturer or remanufacturer. No maintenance or use condition may 
beimposed unless it is, in the judgement of the 
Administrator,demonstrably related to preventing the nonconformity.
    (5) A description of the procedure to be followed by locomotive 
orlocomotive engine owners to obtain correction of the 
nonconformity.This shall include designation of the date on or after 
which the ownercan have the nonconformity remedied, the time reasonably 
necessary toperform the labor required to correct the nonconformity, and 
thedesignation of facilities at which the nonconformity can be 
remedied:Provided, That repair shall be completed within a 
reasonabletime designated by the Administrator from the date the owner 
firsttenders his locomotive or locomotive engine after the date 
designatedby the manufacturer or remanufacturer as the date on or after 
whichthe owner can have the nonconformity remedied.
    (6) If some or all of the nonconforming locomotives or 
locomotiveengines are to be remedied by persons other than authorized 
warrantyagents of the manufacturer or remanufacturer, a description of 
theclass of persons other than authorized warranty agents of 
themanufacturer or remanufacturer who will remedy the nonconformity, 
anda statement indicating that the participating members of the 
classwill be properly equipped to perform such remedial action.
    (7) Three copies of the letters of notification to be sent 
tolocomotive or locomotive engine owners.
    (8) A description of the system by which the manufacturer 
orremanufacturer will assure that an adequate supply of parts will 
beavailable to perform the repair under the remedial plan including 
thedate by which an adequate supply of parts will be available 
toinitiate the repair campaign, the percentage of the total 
partsrequirement of each person who is to perform the repair under 
theremedial

[[Page 523]]

plan to be shipped to initiate the campaign, and themethod to be used to 
assure the supply remains both adequate andresponsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to 
thosepersons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuelconsumption, 
operability, and safety of each class or category oflocomotives or 
locomotive engines to be recalled and a brief summaryof the data, 
technical studies, or engineering evaluations whichsupport these 
conclusions.
    (11) Any other information, reports or data which theAdministrator 
may reasonably determine is necessary to evaluate theremedial plan.
    (b)(1) Notification to locomotive or locomotive engine ownersshall 
be made by first class mail or by such means as approved by 
theAdministrator.
    (2) The manufacturer or remanufacturer shall use all reasonablemeans 
necessary to locate locomotive or locomotive engine owners.
    (3) The Administrator reserves the right to require themanufacturer 
or remanufacturer to send by certified mail or otherreasonable means 
subsequent notification to locomotive or locomotiveengine owners.
    (c)(1) The manufacturer or remanufacturer shall require those 
whoperform the repair under the remedial plan to affix a label to 
eachlocomotive or locomotive engine repaired or, when required, 
inspectedunder the remedial plan.
    (2) The label shall be placed in such location as approved by 
theAdministrator consistent with Federal Railroad 
Administrationregulations and shall be fabricated of a material suitable 
for thelocation in which it is installed and which is not readily 
removableintact.
    (3) The label shall contain:
    (i) The recall campaign number; and
    (ii) A code designating the campaign facility at which the repair,or 
inspection for repair was performed.
    (4) The Administrator reserves the right to waive any or all ofthe 
requirements of this paragraph (c) if he/she determines that 
theyconstitute an unwarranted burden to the manufacturer 
orremanufacturer.
    (d) The Administrator may require the manufacturer orremanufacturer 
to conduct tests on components and locomotives orlocomotive engines 
incorporating a change, repair, or modificationreasonably designed and 
necessary to demonstrate the effectiveness ofthe change, repair, or 
modification.

    Note to Sec. 92.705: An interpretive rulingregarding Sec. 92.705 
is published in Appendix II to thispart.



Sec. 92.706  Approval of plan: Implementation.

    (a) If the Administrator finds that the remedial plan is designedand 
effective to correct the nonconformity, he/she will so notify 
themanufacturer or remanufacturer in writing. If the remedial plan is 
notapproved, the Administrator will provide the manufacturer 
orremanufacturer notice of the disapproval and the reasons for 
thedisapproval in writing.
    (b) Upon receipt of notice from the Administrator that theremedial 
plan has been approved, the manufacturer or remanufacturershall commence 
implementation of the approved plan. Notification oflocomotive or 
locomotive engine owners shall be in accordance withrequirements of this 
subpart and shall proceed as follows:
    (1) When no public hearing as described in Sec. 92.709is requested 
by the manufacturer or remanufacturer, notification oflocomotive or 
locomotive engine owners shall commence within 15working days of the 
receipt by the manufacturer or remanufacturer ofthe Administrator's 
approval unless otherwise specified by theAdministrator.
    (2) When a public hearing as described in Sec. 92.709 isheld, 
unless as a result of such hearing the Administrator withdrawsthe 
determination of nonconformity, the Administrator shall, within 60days 
after the completion of such hearing, order the manufacturer 
orremanufacturer to provide prompt notification of such nonconformity.



Sec. 92.707  Notification to locomotive or locomotive engine owners.

    (a) The notification of locomotive or locomotive engine ownersshall 
contain the following:

[[Page 524]]

    (1) The statement: ``The Administrator of the U.S.Environmental 
Protection Agency has determined that your locomotive orlocomotive 
engine may be emitting pollutants in excess of the federalemission 
standards or family emission limits, as defined in 40 CFRpart 92. These 
standards or family emission limits, as defined in 40CFR part 92 were 
established to protect the public health or welfarefrom the dangers of 
air pollution.''
    (2) A statement that the nonconformity of any such locomotives 
orlocomotive engines which have been, if required by the remedial 
plan,properly maintained and used, will be remedied at the expense of 
themanufacturer or remanufacturer.
    (3) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer or remanufacturer conditions eligibility 
forrepair under the remedial plan and a description of the proof to 
berequired of a locomotive or locomotive engine owner to 
demonstratecompliance with such condition. Eligibility may not be denied 
solelyon the basis that the locomotive or locomotive engine owner used 
partsnot manufactured or remanufactured by the manufacturer 
orremanufacturer, or had repairs not performed by the manufacturer 
orremanufacturer.
    (4) A clear description of the components which will be affectedby 
the remedy and a general statement of the measures to be taken tocorrect 
the nonconformity.
    (5) A description of the adverse effects, if any, that anuncorrected 
nonconformity would have on the performance or operabilityof the 
locomotive or locomotive engine.
    (6) A description of the adverse effects, if any, that 
suchnonconformity would have on the performance or operability of 
thelocomotive or locomotive engine.
    (7) A description of the average effects, if any, that 
suchnonconformity would have on the functions of other locomotive 
orlocomotive engine components.
    (8) A description of the procedure which the locomotive orlocomotive 
engine owner should follow to obtain correction of thenonconformity. 
This shall include designation of the date on or afterwhich the owner 
can have the nonconformity remedied, the timereasonably necessary to 
perform the labor required to correct thenonconformity, and the 
designation of facilities at which thenonconformity can be remedied.
    (9) A telephone number provided by the manufacturer 
orremanufacturer, which may be used to report difficulty in 
obtainingrecall repairs.
    (10) The statement: ``In order to ensure your fullprotection under 
the emission warranty made applicable to your(locomotive or locomotive 
engine) by federal law, and your right toparticipate in future recalls, 
it is recommended that you have(locomotive or locomotive engine) 
serviced as soon as possible.Failure to do so could legally be 
determined to be a lack of propermaintenance of your (locomotive or 
locomotive engine).''
    (b) No notice sent pursuant to paragraph (a) of this section norany 
other contemporaneous communication sent to locomotive orlocomotive 
engine owners or dealers shall contain any statement orimplication that 
the nonconformity does not exist or that thenonconformity will not 
degrade air quality.
    (c) The manufacturer or remanufacturer shall be informed of anyother 
requirements pertaining to the notification under this sectionwhich the 
Administrator has determined are reasonable and necessary toensure the 
effectiveness of the recall campaign.



Sec. 92.708  Records and reports.

    (a) The manufacturer or remanufacturer shall provide to 
theAdministrator a copy of all communications which relate to 
theremedial plan directed to persons who are to perform the repair 
underthe remedial plan. Such copies shall be mailed to the 
Administratorcontemporaneously with their transmission to persons who 
are toperform the repair under the remedial plan.
    (b) The manufacturer or remanufacturer shall provide for 
theestablishment and maintenance of records to enable the 
Administratorto conduct a continuing analysis of the adequacy of the 
recallcampaign. The records shall include, for each class or category of

[[Page 525]]

locomotive or locomotive engine, but need not be limited to, 
thefollowing:
    (1) Recall campaign number as designated by the manufacturer 
orremanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in 
therecall campaign.
    (4) Number of locomotives or locomotive engines known or estimatedto 
be affected by the nonconformity.
    (5) Number of locomotives or locomotive engines inspected pursuantto 
the remedial plan.
    (6) Number of inspected locomotives or locomotive engines found tobe 
affected by the nonconformity.
    (7) Number of locomotives or locomotive engines actually 
receivingrepair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to 
beunavailable for inspection or repair under the remedial plan due 
toexportation, scrapping or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to 
beineligible for remedial action due to a failure to properly maintainor 
use such locomotives or locomotive engines.
    (c) If the manufacturer or remanufacturer determines that 
theoriginal answers for paragraphs (b)(3) and (b)(4) of this section 
areincorrect, revised figures and an explanatory note shall be 
submitted.Answers to paragraphs (b)(5), (b)(6), (b)(7), (b)(8), and 
(b)(9) ofthis section shall be cumulative totals.
    (d) Unless otherwise directed by the Administrator, theinformation 
specified in paragraph (b) of this section shall beincluded in quarterly 
reports, with respect to each recall campaign,for six consecutive 
quarters beginning with the quarter in which thenotification of owners 
was initiated, or until all nonconforminglocomotives or locomotive 
engines involved in the campaign have beenremedied, whichever occurs 
sooner. Such reports shall be submitted nolater than 25 working days 
after the close of each calendar quarter.
    (e) The manufacturer or remanufacturer shall maintain in a 
formsuitable for inspection, such as computer information storage 
devicesor card files, lists of the names and addresses of locomotive 
orlocomotive engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the 
remedialplan; and
    (3) When eligibility for repair is conditioned on propermaintenance 
or use, that were determined not to qualify for suchremedial action.
    (f) The records described in paragraph (e) of this section shallbe 
made available to the Administrator upon request.
    (g) The records and reports required by this section shall 
beretained for not less than eight (8) years.

    Effective Date Note: At 63 FR 19069, Apr. 16, 1998,Sec. 92.708 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.709  Public hearings.

    (a) Definitions. The following definitions shall beapplicable to 
this section:
    (1) Hearing Clerk shall mean the Hearing Clerk of theEnvironmental 
Protection Agency.
    (2) Intervenor shall mean a person who files a petition tobe made an 
intervenor pursuant to paragraph (g) of this section andwhose petition 
is approved.
    (3) Manufacturer or remanufacturer refers to a manufactureror 
remanufacturer contesting a recall order directed at thatmanufacturer or 
remanufacturer.
    (4) Party shall include the Environmental Protection Agency,the 
manufacturer or remanufacturer, and any intervenors.
    (5) Presiding Officer shall mean an Administrative Law 
Judgeappointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (6) Environmental Appeals Board shall mean the Board withinthe 
Agency described in Sec. 1.25 of this chapter. TheAdministrator 
delegates authority to the Environmental Appeals Boardto issue final 
decisions in appeals filed under this subpart. Appealsdirected to the 
Administrator, rather than to the EnvironmentalAppeals Board, will not 
be

[[Page 526]]

considered. This delegation ofauthority to the Environmental Appeals 
Board does not preclude theEnvironmental Appeals Board from referring an 
appeal or a motion filedunder this subpart to the Administrator for 
decision when theEnvironmental Appeals Board, in its discretion, deems 
it appropriateto do so. When an appeal or motion is referred to the 
Administrator,all parties shall be so notified and the rules in this 
part referringto the Environmental Appeals Board shall be interpreted as 
referringto the Administrator.
    (b) Request for public hearing. (1)(i) If the manufactureror 
remanufacturer disagrees with the Administrator's finding 
ofnonconformity he may request a public hearing as described in 
thissection. Requests for such a hearing shall be filed with 
theAdministrator not later than 45 days after the receipt of 
theAdministrator's notification of nonconformity unless 
otherwisespecified by the Administrator. Two copies of such request 
shallsimultaneously be served upon the Director of the Engine Programs 
andCompliance Division and two copies filed with the Hearing 
Clerk.Failure of the manufacturer or remanufacturer to request a 
hearingwithin the time provided shall constitute a waiver of his right 
tosuch a hearing. In such a case, the manufacturer or 
remanufacturershall carry out the recall order as required by Sec. 
92.705.
    (ii) Subsequent to the expiration of the period for requesting 
ahearing as of right, the Administrator may, in his discretion and 
forgood cause shown, grant the manufacturer or remanufacturer a 
hearingto contest the nonconformity.
    (2) The request for a public hearing shall contain:
    (i) A statement as to which classes or categories of locomotivesor 
locomotive engines are to be the subject of the hearing;
    (ii) A concise statement of the issues to be raised by 
themanufacturer or remanufacturer at the hearing for each class 
orcategory of locomotive or locomotive engine for which the 
manufactureror remanufacturer has requested the hearing; and
    (iii) A statement as to reasons the manufacturer or 
remanufacturerbelieves it will prevail on the merits on each of the 
issues soraised.
    (3) A copy of all requests for public hearings shall be kept onfile 
in the Office of the Hearing Clerk and shall be made available tothe 
public during Agency business hours.
    (c) Filing and service. (1) An original and two copies ofall 
documents or papers required or permitted to be filed pursuant tothis 
section shall be filed with the Hearing Clerk. Filing shall bedeemed 
timely if mailed, as determined by the postmark, to the HearingClerk 
within the time allowed by this section. If filing is to beaccomplished 
by mailing, the documents shall be sent to the addressset forth in the 
notice of public hearing as described in paragraph(f) of this section.
    (2) Except for requests to commence a hearing, at the same time 
aparty files with the Hearing Clerk any additional issues 
forconsideration at the hearing or any written testimony, 
documents,papers, exhibits, or materials, to be introduced into evidence 
orpapers filed in connection with any appeal, it shall serve upon 
allother parties copies thereof. A certificate of service shall 
beprovided on or accompany each document or paper filed with the 
HearingClerk. Documents to be served upon the Director of the Engine 
Programsand Compliance Division shall be mailed to: Director, Engine 
Programsand Compliance Division 6403-J, U.S. Environmental 
ProtectionAgency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Service bymail is complete upon mailing.
    (d) Time. (1) In computing any period of time prescribed orallowed 
by this section, except as otherwise provided, the day of theact or 
event from which the designated period of time begins to runshall not be 
included. Saturdays, Sundays, and Federal legal holidaysshall be 
included in computing any such period allowed for the filingof any 
document or paper, except that when such period expires on aSaturday, 
Sunday, or Federal legal holiday, such period shall beextended to 
include the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted

[[Page 527]]

to do an act shall be computed from the time ofservice, except that when 
service is accomplished by mail, three daysshall be added to the 
prescribed period.
    (e) Consolidation. The Administrator or the PresidingOfficer in his 
discretion may consolidate two or more proceedings tobe held under this 
section for the purpose of resolving one or moreissues whenever it 
appears that such consolidation will expedite orsimplify consideration 
of such issues. Consolidation shall not affectthe right of any party to 
raise issues that could have been raised ifconsolidation had not 
occurred.
    (f) Notice of public hearings. (1) Notice of a publichearing under 
this section shall be given by publication in theFederal Register. 
Notice will be given at least 30 days prior tothe commencement of such 
hearings.
    (2) The notice of a public hearing shall include the 
followinginformation:
    (i) The purpose of the hearing and the legal authority under 
whichthe hearing is to be held;
    (ii) A brief summary of the Administrator's determination 
ofnonconformity;
    (iii) A brief summary of the manufacturer's or remanufacturer'sbasis 
for contesting the Administrator's determination ofnonconformity;
    (iv) Information regarding the time and location of the hearingand 
the address to which all documents required or permitted to befiled 
should be sent;
    (v) The address of the Hearing Clerk to whom all inquiries shouldbe 
directed and with whom documents are required to be filed;
    (vi) A statement that all petitions to be made an intervenor mustbe 
filed with the Hearing Clerk within 25 days from the date of thenotice 
of public hearing and must conform to the requirements ofparagraph (g) 
of this section.
    (3) The notice of public hearing shall be issued by the 
GeneralCounsel.
    (g) Intervenors. (1) Any person desiring to intervene in ahearing to 
be held under section 207(c)(1) of the Act shall file apetition setting 
forth the facts and reasons why he/she thinks he/sheshould be permitted 
to intervene.
    (2) In passing upon a petition to intervene, the followingfactors, 
among other things, shall be considered by the PresidingOfficer:
    (i) The nature of the petitioner's interest including the natureand 
the extent of the property, financial, environmental protection,or other 
interest of the petitioner;
    (ii) The effect of the order which may be entered in theproceeding 
on petitioner's interest;
    (iii) The extent to which the petitioner's interest will 
berepresented by existing parties or may be protected by other means;
    (iv) The extent to which petitioner's participation may reasonablybe 
expected to assist materially in the development of a completerecord;
    (v) The effect of the intervention on the Agency's statutorymandate.
    (3) A petition to intervene must be filed within 25 days 
followingthe notice of public hearing under section 207(c)(1) of the Act 
andshall be served on all parties. Any opposition to such petition 
mustbe filed within five days of such service.
    (4) All petitions to be made an intervenor shall be reviewed bythe 
Presiding Officer using the criteria set forth in paragraph (g)(2)of 
this section and considering any oppositions to such petition.Where the 
petition demonstrates that the petitioner's interest islimited to 
particular issues, the Presiding Officer may, in grantingsuch petition, 
limit petitioner's participation to those particularissues only.
    (5) If the Presiding Officer grants the petition with respect toany 
or all issues, he/she shall so notify, or direct the Hearing Clerkto 
notify, the petitioner and all parties. If the Presiding Officerdenies 
the petition he/she shall so notify, or direct the HearingClerk to 
notify, the petitioner and all parties and shall brieflystate the 
reasons why the petition was denied.
    (6) All petitions to be made an intervenor shall include anagreement 
by the petitioner, and any person represented by thepetitioner, to be 
subject to examination and cross-examination and tomake any supporting 
and relevant records available at its own expenseupon the request of the 
Presiding Officer, on his/her own motion or

[[Page 528]]

the motion of any party or other intervenor. If the intervenorfails to 
comply with any such request, the Presiding Officer may inhis/her 
discretion, terminate his/her status as an intervenor.
    (h) Intervention by motion. Following the expiration of thetime 
prescribed in paragraph (g) of this section for the submission 
ofpetitions to intervene in a hearing, any person may file a motion 
withthe Presiding Officer to intervene in a hearing. Such a motion 
mustcontain the information and commitments required by paragraphs 
(g)(2)and (g)(6) of this section, and, in addition, must show that there 
isgood cause for granting the motion and must contain a statement 
thatthe intervenor shall be bound by agreements, arrangements, and 
otherdeterminations which may have been made in the proceeding.
    (i) Amicus Curiae. Persons not parties to the proceedingswishing to 
file briefs may do so by leave of the Presiding Officergranted on 
motion. A motion for leave shall identify the interest ofthe applicant 
and shall state the reasons why the amicus brief isdesirable.
    (j) Presiding Officer. The Presiding Officer shall have theduty to 
conduct a fair and impartial hearing in accordance with 5U.S.C. 554, 556 
and 557, to take all necessary action to avoid delayin the disposition 
of the proceedings and to maintain order. He/sheshall have all power 
consistent with Agency rule and with theAdministrative Procedure Act (5 
U.S.C. 551 et seq.) necessary tothis end, including the following:
    (1) To administer oaths and affirmations;
    (2) To rule upon offers of proof and receive relevant evidence;
    (3) To regulate the course of the hearings and the conduct of 
theparties and their counsel therein;
    (4) To hold conferences for simplification of the issues or anyother 
proper purpose;
    (5) To consider and rule upon all procedural and other 
motionsappropriate in such proceedings;
    (6) To require the submission of direct testimony in written 
formwith or without affidavit whenever, in the opinion of the 
PresidingOfficer, oral testimony is not necessary for full and true 
disclosureof the facts. Testimony concerning the conduct and results of 
testsand inspections may be submitted in written form;
    (7) To enforce agreements and orders requiring access asauthorized 
by law;
    (8) To require the filing of briefs on any matter on which he/sheis 
required to rule;
    (9) To require any party or any witness, during the course of 
thehearing, to state his/her position on any issue;
    (10) To take or cause depositions to be taken whenever the ends 
ofjustice would be served thereby;
    (11) To make decisions or recommend decisions to resolve thedisputed 
issues of the record of the hearing;
    (12) To issue, upon good cause shown, protective orders asdescribed 
in paragraph (n) of this section.
    (k) Conferences. (1) At the discretion of the PresidingOfficer, 
conferences may be held prior to or during any hearing. ThePresiding 
Officer shall direct the Hearing Clerk to notify all partiesand 
intervenors of the time and location of any such conference. Atthe 
discretion of the Presiding Officer, persons other than partiesmay 
attend. At a conference the Presiding Officer may:
    (i) Obtain stipulations and admissions, receive requests and 
orderdepositions to be taken, identify disputed issues of fact and law, 
andrequire or allow the submission of written testimony from any 
witnessor party;
    (ii) Set a hearing schedule for as many of the following as 
aredeemed necessary by the Presiding Officer:
    (A) Oral and written statements;
    (B) Submission of written direct testimony as required orauthorized 
by the Presiding Officer;
    (C) Oral direct and cross-examination of a witness where necessaryas 
prescribed in paragraph (p) of this section;
    (D) Oral argument, if appropriate;
    (iii) Identify matters of which official notice may be taken;
    (iv) Consider limitation of the number of expert and otherwitnesses;
    (v) Consider the procedure to be followed at the hearing; and
    (vi) Consider any other matter that may expedite the hearing oraid 
in the disposition of the issue.
    (2) The results of any conference including all stipulationsshall, 
if not

[[Page 529]]

transcribed, be summarized in writing by thePresiding Officer and made 
part of the record.
    (l) Primary discovery (exchange of witness lists anddocuments). (1) 
At a prehearing conference or within somereasonable time set by the 
Presiding Officer prior to the hearing,each party shall make available 
to the other parties the names of theexpert and other witnesses the 
party expects to call, together with abrief summary of their expected 
testimony and a list of all documentsand exhibits which the party 
expects to introduce into evidence.Thereafter, witnesses, documents, or 
exhibits may be added andsummaries of expected testimony amended upon 
motion by a party.
    (2)(i) The Presiding Officer, may, upon motion by a party or 
otherperson, and for good cause shown, by order:
    (A) Restrict or defer disclosure by a party of the name of awitness 
or a narrative summary of the expected testimony of a witness;and
    (B) Prescribe other appropriate measures to protect a witness.
    (ii) Any party affected by any such action shall have an 
adequateopportunity, once he learns the name of a witness and obtains 
thenarrative summary of his expected testimony, to prepare for 
thepresentation of his case.
    (m) Other discovery. (1) Except as so provided by paragraph(l) of 
this section, further discovery, under this paragraph (m),shall be 
permitted only upon determination by the Presiding Officer:
    (i) That such discovery will not in any way unreasonably delay 
theproceeding;
    (ii) That the information to be obtained is not 
obtainablevoluntarily; and
    (iii) That such information has significant probative value. 
ThePresiding Officer shall be guided by the procedures set forth in 
theFederal Rules of Civil Procedure (28 U.S.C.), where practicable, 
andthe precedents thereunder, except that no discovery shall 
beundertaken except upon order of the Presiding Officer or uponagreement 
of the parties.
    (2) The Presiding Officer shall order depositions upon oralquestions 
only upon a showing of good cause and upon a finding that:
    (i) The information sought cannot be obtained by alternativemethods; 
or
    (ii) There is a substantial reason to believe that relevant 
andprobative evidence may otherwise not be preserved for presentation 
bya witness at the hearing.
    (3) Any party to the proceeding desiring an order of discoveryshall 
make a motion or motions therefor. Such a motion shall setforth:
    (i) The circumstances warranting the taking of the discovery;
    (ii) The nature of the information expected to be discovered; and
    (iii) The time and place where it will be taken. If the 
PresidingOfficer determines the motion should be granted, he shall issue 
anorder for the taking of such discovery together with the conditionsand 
terms thereof.
    (4) Failure to comply with an order issued pursuant to thisparagraph 
(m) may lead to the inference that the information to bediscovered would 
be adverse to the person or party from whom theinformation was sought.
    (n) Protective orders: in camera proceedings. (1) Uponmotion by a 
party or by the person from whom discovery is sought, andupon a showing 
by the movant that the disclosure of the information tobe discovered, or 
a particular part thereof, (other than emissiondata) would result in 
methods or processes entitled to protection astrade secrets of such 
person being divulged, the Presiding Officer mayenter a protective order 
with respect to such material. Any protectiveorder shall contain such 
terms governing the treatment of theinformation as may be appropriate 
under the circumstances to preventdisclosure outside the hearing: 
Provided, That the order shallstate that the material shall be filed 
separately from other evidenceand exhibits in the hearing. Disclosure 
shall be limited to parties tothe hearing, their counsel and relevant 
technical consultants, andauthorized representatives of the United 
States concerned withcarrying out the Act. Except in the case of the 
government, disclosuremay be limited to counsel to parties who shall not 
disclose suchinformation to the parties themselves. Except

[[Page 530]]

in the case of thegovernment, disclosure to a party or his counsel shall 
be conditionedon execution of a sworn statement that no disclosure of 
theinformation will be made to persons not entitled to receive it 
underthe terms of the protective order. (No such provision is 
necessarywhere government employees are concerned because disclosure by 
them issubject to the terms of 18 U.S.C. 1905.)
    (2)(i) A party or person seeking a protective order may bepermitted 
to make all or part of the required showing in camera. Arecord shall be 
made of such in camera proceedings. If the PresidingOfficer enters a 
protective order following a showing in camera, therecord of such 
showing shall be sealed and preserved and madeavailable to the Agency or 
court in the event of appeal.
    (ii) Attendance at any in camera proceeding may be limited to 
thePresiding Officer, the Agency, and the person or party seeking 
theprotective order.
    (3) Any party, subject to the terms and conditions of anyprotective 
order issued pursuant to paragraph (n)(1) of this section,desiring for 
the presentation of his/her case to make use of any incamera documents 
or testimony shall make application to the PresidingOfficer by motion 
setting forth the justification therefor. ThePresiding Officer, in 
granting any such motion, shall enter an orderprotecting the rights of 
the affected persons and parties andpreventing unnecessary disclosure of 
such information, including thepresentation of such information and oral 
testimony and cross-examination concerning it in executive session, as 
in his/herdiscretion is necessary and practicable.
    (4) In the submittal of findings, briefs, or other papers, 
counselfor all parties shall make a good faith attempt to refrain 
fromdisclosing the specific details of in camera documents and 
testimony.This shall not preclude references in such findings, briefs, 
or otherpapers to such documents or testimony including generalized 
statementsbased on their contents. To the extent that counsel consider 
itnecessary to include specific details in their presentations, suchdata 
shall be incorporated in separate findings, briefs, or otherpapers 
marked ``confidential'', which shall become part ofthe in camera record.
    (o) Motions. (1) All motions, except those made orallyduring the 
course of the hearing, shall be in writing and shall statewith 
particularity the grounds therefor, shall set forth the relief ororder 
sought, and shall be filed with the Hearing Clerk and servedupon all 
parties.
    (2) Within ten days after service of any motion filed pursuant 
tothis section, or within such other time as may be fixed by 
theEnvironmental Appeals Board or the Presiding Officer, as 
appropriate,any party may serve and file an answer to the motion. The 
movantshall, if requested by the Environmental Appeals Board or 
thePresiding Officer, as appropriate, serve and file reply papers 
withinthe time set by the request.
    (3) The Presiding Officer shall rule upon all motions filed ormade 
prior to the filing of his decision or accelerated decision, 
asappropriate. The Environmental Appeals Board shall rule upon 
allmotions filed prior to the appointment of a Presiding Officer and 
allmotions filed after the filing of the decision of the 
PresidingOfficer or accelerated decision. Oral argument of motions will 
bepermitted only if the Presiding Officer or the Environmental 
AppealsBoard, as appropriate, deems it necessary.
    (p) Evidence. (1) The official transcripts and exhibits,together 
with all papers and requests filed in the proceeding, shallconstitute 
the record. Immaterial or irrelevant parts of an admissibledocument 
shall be segregated and excluded so far as practicable.Documents or 
parts thereof subject to a protective order underparagraph (n) of this 
section shall be segregated. Evidence may bereceived at the hearing even 
though inadmissible under the rules ofevidence applicable to judicial 
proceedings. The weight to be givenevidence shall be determined by its 
reliability and probative value.
    (2) The Presiding Officer shall allow the parties to examine andto 
cross-examine a witness to the extent that

[[Page 531]]

such examinationand cross-examination is necessary for a full and true 
disclosure ofthe facts.
    (3) Rulings of the Presiding Officer on the admissibility 
ofevidence, the propriety of examination and cross-examination and 
otherprocedural matters shall appear in the record.
    (4) Parties shall automatically be presumed to have takenexception 
to an adverse ruling.
    (q) Interlocutory appeal. (1) An interlocutory appeal may betaken to 
the Environmental Appeals Board either:
    (i) With the consent of the Presiding Officer and where hecertifies 
on the record or in writing that the allowance of aninterlocutory appeal 
is clearly necessary to prevent exceptionaldelay, expense or prejudice 
to any party or substantial detriment tothe public interest; or
    (ii) Absent the consent of the Presiding Officer, by permission 
ofthe Environmental Appeals Board.
    (2) Applications for interlocutory appeal of any ruling or orderof 
the Presiding Officer may be filed with the Presiding Officerwithin 5 
days of the issuance of the ruling or order being appealed.Answers 
thereto by other parties may be filed within 5 days of theservice of 
such applications.
    (3) The Presiding Officer shall rule on such applications within 
5days of the filing of such application or answers thereto.
    (4) Applications to file such appeals absent consent of thePresiding 
Officer shall be filed with the Environmental Appeals Boardwithin 5 days 
of the denial of any appeal by the Presiding Officer.
    (5) The Environmental Appeals Board will consider the merits ofthe 
appeal on the application and any answers thereto. No oralargument will 
be heard nor other briefs filed unless the EnvironmentalAppeals Board 
directs otherwise.
    (6) Except under extraordinary circumstances as determined by 
thePresiding Officer, the taking of an interlocutory appeal will not 
staythe hearing.
    (r) Record. (1) Hearings shall be stenographically reportedand 
transcribed, and the original transcript shall be part of therecord and 
the sole official transcript. Copies of the record shall befiled with 
the Hearing Clerk and made available during Agency businesshours for 
public inspection. Any person desiring a copy of the recordof the 
hearing or any part thereof shall be entitled to the same uponpayment of 
the cost thereof.
    (2) The official transcripts and exhibits, together with allpapers 
and requests filed in the proceeding, shall constitute therecord.
    (s) Findings, conclusions. (1) Within 20 days of the closeof the 
reception of evidence, or within such longer time as may befixed by the 
Presiding Officer, any party may submit for theconsideration of the 
Presiding Officer findings of fact, conclusionsof law, and a rule or 
order, together with reasons therefor and briefsin support thereof. Such 
proposals shall be in writing, shall beserved upon all parties, and 
shall contain adequate references to therecord and authorities relied 
on.
    (2) The record shall show the Presiding Officer's ruling on 
thefindings and conclusions except when his/her order disposing of 
theproceeding otherwise informs the parties of the action taken byhim/
her thereon.
    (t) Decision of the Presiding Officer. (1) Unless extendedby the 
Environmental Appeals Board, the Presiding Officer shall issueand file 
with the Hearing Clerk his decision within 30 days after theperiod for 
filing findings as provided for in paragraph (s) of thissection has 
expired.
    (2) The Presiding Officer's decision shall become the opinion ofthe 
Environmental Appeals Board:
    (i) When no notice of intention to appeal as described inparagraph 
(u) of this section is filed, 30 days after the issuancethereof, unless 
in the interim the Environmental Appeals Board shallhave taken action to 
review or stay the effective date of thedecision; or
    (ii) When a notice of intention to appeal is filed but the appealis 
not perfected as required by paragraph (u) of this section, 5 daysafter 
the period allowed for perfection of an appeal has expiredunless within 
that 5 day period, the Environmental Appeals Board shallhave taken 
action to review or stay the effective date of thedecision.

[[Page 532]]

    (3) The Presiding Officer's decision shall include astatement of 
findings and conclusions, as well as the reasons or basistherefor, upon 
all the material issues of fact or law presented on therecord and an 
appropriate rule or order. Such decision shall besupported by 
substantial evidence and based upon a consideration ofthe whole record.
    (4) At any time prior to the issuance of his decision, thePresiding 
Officer may reopen the proceeding for the reception offurther evidence. 
Except for the correction of clerical errors, thejurisdiction of the 
Presiding Officer is terminated upon the issuanceof his/her decision.
    (u) Appeal from the decision of the Presiding Officer. (1)Any party 
to a proceeding may appeal the Presiding Officer's decisionto the 
Environmental Appeals Board, Provided, That within 10 daysafter issuance 
of the Presiding Officer's decision such party files anotice of 
intention to appeal and an appeal brief within 30 days ofsuch decision.
    (2) When an appeal is taken from the decision of the 
PresidingOfficer, any party may file a brief with respect to such 
appeal. Thebrief shall be filed within 20 days of the date of the filing 
of theappellant's brief.
    (3) Any brief filed pursuant to this paragraph (u) shall containin 
the order indicated, the following:
    (i) A subject index of the matter in the brief, with pagereferences, 
and a table of cases (alphabetically arranged), textbooks,statutes, and 
other material cited, with page references thereto;
    (ii) A specification of the issues intended to be urged;
    (iii) The argument presenting clearly the points of fact and 
lawrelied upon in support of the position taken on each issue, 
withspecific page references to the record and the legal or other 
materialrelied upon; and
    (iv) A form of rule or order for the Environmental Appeals 
Board'sconsideration if different from the rule or order contained in 
thePresiding Officer's decision.
    (4) No brief in excess of 40 pages shall be filed without leave 
ofthe Environmental Appeals Board.
    (5) Oral argument will be allowed in the discretion of 
theEnvironmental Appeals Board.
    (v) Review of the Presiding Officer's decision in absence ofappeal. 
(1) If, after the expiration of the period for taking anappeal as 
provided for by paragraph (u) of this section, no notice ofintention to 
appeal the decision of the Presiding Officer has beenfiled, or if filed, 
not perfected, the Hearing Clerk shall so notifythe Environmental 
Appeals Board.
    (2) The Environmental Appeals Board, upon receipt of notice fromthe 
Hearing Clerk that no notice of intention to appeal has beenfiled, or if 
filed, not perfected pursuant to paragraph (u) of thissection, may, on 
its own motion, within the time limits specified inparagraph (t)(2) of 
this section, review the decision of the PresidingOfficer. Notice of the 
intention of the Environmental Appeals Board toreview the decision of 
the Presiding Officer shall be given to allparties and shall set forth 
the scope of such review and the issuewhich shall be considered and 
shall make provision for filing ofbriefs.
    (w) Decision on appeal or review. (1) Upon appeal from orreview of 
the Presiding Officer's decision, the Environmental AppealsBoard shall 
consider such parts of the record as are cited or as maybe necessary to 
resolve the issues presented and, in addition shall tothe extent 
necessary or desirable exercise all the powers which itcould have 
exercised if it had presided at the hearing.
    (2) In rendering its decision, the Environmental Appeals Boardshall 
adopt, modify, or set aside the findings, conclusions, and ruleor order 
contained in the decision of the Presiding Officer and shallset forth in 
its decision a statement of the reasons or bases for itsaction.
    (3) In those cases where the Environmental Appeals Boarddetermines 
that it should have further information or additional viewsof the 
parties as to the form and content of the rule or order to beissued, the 
Environmental Appeals Board, in its discretion, maywithhold final action 
pending the receipt of such additionalinformation or

[[Page 533]]

views, or may remand the case to the PresidingOfficer.
    (x) Reconsideration. Within twenty (20) days after issuanceof the 
Environmental Appeals Board's decision, any party may file withthe 
Environmental Appeals Board a petition for reconsideration of 
suchdecision, setting forth the relief desired and the grounds in 
supportthereof. Any petition filed under this paragraph (x) must be 
confinedto new questions raised by the decision or the final order and 
uponwhich the petitioner had no opportunity to argue before the 
PresidingOfficer or the Environmental Appeals Board. Any party desiring 
tooppose such a petition shall file and answer thereto within ten 
(10)days after the filing of the petition. The filing of a petition 
forreconsideration shall not operate to stay the effective date of 
thedecision or order or to toll the running of any statutory time 
periodaffecting such decision or order unless specifically so ordered by 
theEnvironmental Appeals Board.
    (y) Accelerated decision: Dismissal. (1) The PresidingOfficer, upon 
motion of any party or sua sponte, may at any timerender an accelerated 
decision in favor of the Agency or themanufacturer or remanufacturer as 
to all or any part of theproceeding, without further hearing or upon 
such limited additionalevidence such as affidavits as he/she may 
require, or dismiss anyparty with prejudice, under any of the following 
conditions:
    (i) Failure to state a claim upon which relief can be granted, 
ordirect or collateral estoppel;
    (ii) There is no genuine issue of material fact and a party 
isentitled to judgment as a matter of law; or
    (iii) Such other and further reasons as are just, 
includingspecifically failure to obey a procedural order of the 
PresidingOfficer.
    (2) If under this paragraph (y) an accelerated decision is issuedas 
to all the issues and claims joined in the proceeding, the decisionshall 
be treated for the purposes of these procedures as the decisionof the 
Presiding Officer as provided in paragraph (p) of this section.
    (3) If under this paragraph (y), judgment is rendered on less 
thanall issues or claims in the proceeding, the Presiding Officer 
shalldetermine what material facts exist without substantial 
controversyand what material facts are actually and in good faith 
controverted.He/she shall thereupon issue an order specifying the facts 
whichappear without substantial controversy, and the issues and claims 
uponwhich the hearing will proceed.
    (z) Conclusion of hearing. (1) If, after the expiration ofthe period 
for taking an appeal as provided for by paragraph (u) ofthis section, no 
appeal has been taken from the Presiding Officer'sdecision, and, after 
the expiration of the period for review by theEnvironmental Appeals 
Board on its own motion as provided for byparagraph (v) of this section, 
the Environmental Appeals Board doesnot move to review such decision, 
the hearing will be deemed to haveended at the expiration of all periods 
allowed for such appeal andreview.
    (2) If an appeal of the Presiding Officer's decision is 
takenpursuant to paragraph (u) of this section, or if, in the absence 
ofsuch appeal, the Environmental Appeals Board moves to review 
thedecision of the Presiding Officer pursuant to paragraph (v) of 
thissection, the hearing will be deemed to have ended upon the 
renderingof a final decision by the Environmental Appeals Board.
    (aa) Judicial review. (1) The Administrator herebydesignates the 
Deputy General Counsel, Environmental Protection Agencyas the officer 
upon whom copy of any petition for judicial reviewshall be served. Such 
officer shall be responsible for filing in thecourt the record on which 
the order of the Environmental Appeals Boardis based.
    (2) Before forwarding the record to the court, the Agency 
shalladvise the petitioner of costs of preparing it and as soon as 
paymentto cover fees is made shall forward the record to the court.



Subpart I_Importation of Nonconforming Locomotives andLocomotive Engines



Sec. 92.801  Applicability.

    (a) Except where otherwise indicated, this subpart is applicableto 
importers

[[Page 534]]

of locomotives or locomotive engines for which theAdministrator has 
promulgated regulations under this part prescribingemission standards, 
that are offered for importation or imported intothe United States, but 
which locomotives or locomotive engines, at thetime of importation or 
being offered for importation, are not coveredby certificates of 
conformity issued under section 213 and section206(a) of the Clean Air 
Act (that is, which are nonconforminglocomotives or locomotive engines 
as defined in Sec. 92.2),and this part. Compliance with regulations 
under this subpart does notrelieve any person or entity from compliance 
with other applicableprovisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importationof 
locomotives and locomotive engines into the Customs territory ofthe 
United States, as defined in 19 U.S.C. 1202, are set forth in 
U.S.Customs Service regulations (19 CFR chapter I).



Sec. 92.802  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.803  Admission.

    A nonconforming locomotive or locomotive engine offered 
forimportation may be admitted into the United States pursuant to 
theprovisions of this subpart. In order to obtain admission the 
importermust submit to the Administrator a written request for 
approvalcontaining the following:
    (a) Identification of the importer of the locomotive or 
locomotiveengine and the importer's address, telephone number, and 
taxpayeridentification number;
    (b) Identification of the locomotive's or locomotive engine'sowner, 
the owner's address, telephone number, and taxpayeridentification 
number;
    (c) Identification of the locomotive and/or locomotive 
engineincluding make, model, identification number, and original 
productionyear;
    (d) Information indicating the provision in this subpart underwhich 
the locomotive or locomotive engine is to be imported;
    (e) Identification of the place(s) where the locomotive orlocomotive 
engine is to be stored until EPA approval of the importer'sapplication 
to the Administrator for final admission;
    (f) Authorization for EPA enforcement officers to conductinspections 
or testing otherwise permitted by the Act or regulationsthereunder; and
    (g) Such other information as is deemed necessary by 
theAdministrator.



Sec. 92.804  Exemptions.

    (a) Unless otherwise specified, any person may apply for 
theexemptions allowed by this section.
    (b) Notwithstanding other requirements of this subpart, 
anonconforming locomotive or locomotive engine that qualifies for 
atemporary exemption under this paragraph may be conditionally 
admittedinto the United States if prior written approval for the 
conditionaladmission is obtained from the Administrator. Conditional 
admission isto be under bond. The Administrator may request that the 
U.S. CustomsService require a specific bond amount to ensure compliance 
with therequirements of the Act and this subpart. A written request for 
atemporary exemption from the Administrator shall contain 
theidentification required in Sec. 92.803 and information 
thatdemonstrates that the locomotives and or locomotive engines 
qualifyfor an exemption. Noncompliance with provisions of this section 
mayresult in the forfeiture of the total amount of the bond and/
orexportation of the locomotive or locomotive engine. The 
followingtemporary exemptions are permitted by this paragraph (b):
    (1) Exemption for repairs or alterations. Upon writtenapproval by 
EPA, a person may conditionally import under bond anonconforming 
locomotive or locomotive engine solely for purpose ofrepair(s) or 
alteration(s). The locomotive or locomotive engine maynot be operated in 
the United States other than for the sole purposeof repair or alteration 
or shipment to the point of repair oralteration and to the port of 
export. It may not be sold or leased inthe United States and is to be 
exported upon completion of therepair(s) or alteration(s).
    (2) Testing exemption. A nonconforming test locomotive orlocomotive

[[Page 535]]

engine may be conditionally imported by a personsubject to the 
requirements of Sec. 92.905. A testlocomotive or locomotive engine may 
be operated in the United Statesprovided that the operation is an 
integral part of the test. Thisexemption is limited to a period not 
exceeding one year from the dateof importation unless a request is made 
by the appropriate importer,and subsequently granted by EPA, concerning 
the locomotive orlocomotive engine in accordance with Sec. 92.905 for 
asubsequent one-year period.
    (3) Display exemptions. (i) A nonconforming locomotive orlocomotive 
engine intended solely for display may be conditionallyimported under 
bond subject to the requirements ofSec. 92.906(b).
    (ii) A display locomotive or locomotive engine may be imported byany 
person for purposes related to a business or the public interest.Such 
purposes do not include collections normally inaccessible orunavailable 
to the public on a daily basis, display of a locomotive orlocomotive 
engine at a dealership, private use, or other purpose thatthe 
Administrator determines is not appropriate for displayexemptions. A 
display locomotive or locomotive engine may not be soldor leased in the 
United States and may not be operated in the UnitedStates except for the 
operation incident and necessary to the displaypurpose.
    (iii) A display exemption is granted for 12 months or for 
theduration of the display purpose, whichever is shorter. Extensions 
ofup to 12 months each are available upon approval by the 
Administrator.In no circumstances, however, may the total period of 
exemption exceed36 months.
    (c) National security exemption. Notwithstanding any 
otherrequirement of this subpart, a locomotive or locomotive engine may 
bepermanently imported into the United States under the nationalsecurity 
exemption found at Sec. 92.908, if prior writtenapproval for such 
permanent importation is obtained from theAdministrator. A request for 
approval is to contain the identificationinformation required in Sec. 
92.803 and information thatdemonstrates that the importer is entitled to 
the exemption.
    (d) An application for exemption provided for in paragraphs (b)and 
(c) of this section shall be mailed to: Group Manager, EngineCompliance 
Programs Group, Engine Programs and Compliance DivisionU.S. 
Environmental Protection Agency, 6403-J, 1200 PennsylvaniaAve., NW., 
Washington, DC 20460, Attention: Imports.
    (e) Incidental use exemption. Locomotives that are operatedprimarily 
outside of the United States, and that enter the UnitedStates 
temporarily from Canada or Mexico are exempt from therequirements and 
prohibitions of this part without application,provided that the 
operation within the United States is not extensiveand is incidental to 
their primary operation.



Sec. 92.805  Prohibited acts; penalties.

    (a) The importation of a locomotive or locomotive engine which isnot 
covered by a certificate of conformity other than in accordancewith this 
subpart and the entry regulations of the U.S. CustomsService is 
prohibited. Failure to comply with this section is aviolation of section 
213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period 
ofconditional admission, the importer of a locomotive or 
locomotiveengine may not:
    (1) Operate the locomotive or locomotive engine in the UnitedStates;
    (2) Sell or lease or offer the locomotive or locomotive engine 
forsale or lease.
    (c) A locomotive or locomotive engine conditionally admittedpursuant 
to Sec. 92.804 and not otherwise permanentlyexempted or excluded by the 
end of the period of conditionaladmission, or within such additional 
time as the Administrator and theU.S. Customs Service may allow, is 
deemed to be unlawfully importedinto the United States in violation of 
section 213(d) and section 203of the Act, unless the locomotive or 
locomotive engine has beendelivered to the U.S. Customs Service for 
export or other dispositionunder

[[Page 536]]

applicable Customs laws and regulations by the end of theperiod of 
conditional admission. A locomotive or locomotive engine notso delivered 
is subject to seizure by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of 
theAct is subject to a civil penalty under section 205 of the Act 
andSec. 92.1106. In addition to the penalty provided in the Actand 
Sec. 92.1106, where applicable, a person or entity whoimports an engine 
under the exemption provisions ofSec. 92.804 and, who fails to deliver 
the locomotive orlocomotive engine to the U.S. Customs Service by the 
end of the periodof conditional admission is liable for liquidated 
damages in theamount of the bond required by applicable Customs laws 
andregulations.



Sec. 92.806  Importation of partially complete engines.

    The provisions of 40 CFR 1068.330 apply for importation ofpartially 
complete engines, or engines that will be modified forapplications other 
than those covered by this part 92.

[70 FR 40457, July 13, 2005]



              Subpart J_Exclusion and Exemption Provisions



Sec. 92.901  Purpose and applicability.

    The provisions of this subpart identify excluded locomotives(i.e., 
locomotives not covered by the Act) and allow for the exemptionof 
locomotives and locomotive engines from certain provisions of thispart. 
The applicability of the exclusions is described inSec. 92.903, and the 
applicability of the exemptionallowances is described in Sec. Sec. 
92.904 through92.909.



Sec. 92.902  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.903  Exclusions.

    (a) Upon written request with supporting documentation, EPA willmake 
written determinations as to whether certain locomotives areexcluded 
from applicability of this part. Any locomotives that aredetermined to 
be excluded are not subject to the regulations underthis part. Requests 
to determine whether certain locomotives areexcluded should be sent to: 
Group Manager, Engine Compliance ProgramsGroup, Engine Programs and 
Compliance Division U.S. EnvironmentalProtection Agency, 6403-J, 1200 
Pennsylvania Ave., NW.,Washington, DC 20460.
    (b) EPA will maintain a list of models of locomotives that havebeen 
determined to be excluded from coverage under this part. Thislist will 
be available to the public and may be obtained by writing tothe address 
in paragraph (a) of this section.
    (c) In addition to the locomotives excluded in paragraph (a) ofthis 
section, certain vehicles are not subject to the requirements 
andprohibitions of this part because they are excluded from 
thedefinitions of ``locomotive'' and/or ``newlocomotive'' in Sec. 92.2.



Sec. 92.904  Exemptions.

    (a) Except as specified otherwise in this subpart, the provisionsof 
Sec. Sec. 92.904 through 92.911 exempt certain newlocomotives and new 
locomotive engines from the standards, otherrequirements, and 
prohibitions of this part, except for therequirements of this subpart 
and the requirements ofSec. 92.1104.
    (b)(1) Any person may request a testing exemption subject to 
theprovisions of Sec. 92.905.
    (2) Any locomotive or locomotive engine manufacturer 
orremanufacturer may request a national security exemption subject tothe 
provisions of Sec. 92.908.
    (3) Locomotive or locomotive engines manufactured orremanufactured 
for export purposes are exempt without application,subject to the 
provisions of Sec. 92.909, except asotherwise specified by Sec. 
92.909.
    (4) Manufacturer-owned and remanufacturer-owned locomotive 
orlocomotive engines are exempt without application, subject to 
theprovisions of Sec. 92.906(a).
    (5) Display locomotive or locomotive engines are exempt 
withoutapplication, subject to the provisions of Sec. 92.906(b).
    (6) Locomotive propulsion engines that are identical to enginesthat 
are covered by a certificate of conformity

[[Page 537]]

issued under 40CFR part 89, and the locomotives in which they are used, 
are exempt,subject to the provisions of Sec. 92.907.



Sec. 92.905  Testing exemption.

    (a)(1) The Administrator may exempt from the standards and/orother 
requirements and prohibitions of this part new locomotives ornew 
locomotive engines that are being used solely for the purpose 
ofconducting a test program. Any person requesting an exemption for 
thepurpose of conducting a test program must demonstrate the following:
    (i) That the test program has a purpose which constitutes 
anappropriate basis for an exemption in accordance this section;
    (ii) That the proposed test program necessitates the granting ofan 
exemption;
    (iii) That the proposed test program exhibits reasonableness 
inscope; and
    (iv) That the proposed test program exhibits a degree of 
oversightand control consonant with the purpose of the test program and 
EPA'smonitoring requirements.
    (2) Paragraphs (b), (c), (d), and (e) of this section describewhat 
constitutes a sufficient demonstration for each of the fourelements 
identified in paragraphs (a)(1)(i) through (iv) of thissection.
    (b) With respect to the purpose of the proposed test program, 
anappropriate purpose would be research, investigations, 
studies,demonstrations, technology development, or training, but not 
nationalsecurity. A concise statement of purpose is a required item 
ofinformation.
    (c) With respect to the necessity that an exemption be 
granted,necessity arises from an inability to achieve the stated purpose 
in apracticable manner without performing or causing to be performed 
oneor more of the prohibited acts under Sec. 92.1103. Inappropriate 
circumstances, time constraints may be a sufficient basisfor necessity, 
but the cost of certification alone, in the absence ofextraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit 
aduration of reasonable length and affect a reasonable number ofengines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration; and
    (2) The maximum number of locomotives or locomotive enginesinvolved.
    (e) With respect to control, the test program must 
incorporateprocedures consistent with the purpose of the test and be 
capable ofaffording EPA monitoring capability. As a minimum, required 
items ofinformation include:
    (1) The technical nature of the testing;
    (2) The location(s) of the testing;
    (3) The time, work, or mileage duration of the testing;
    (4) The ownership arrangement with regard to the locomotives 
andengines involved in the testing;
    (5) The intended final disposition of the locomotives and engines;
    (6) The manner in which the locomotive or engine 
identificationnumbers will be identified, recorded, and made available; 
and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer or remanufacturer of new locomotives orlocomotive 
engines may request a testing exemption to coverlocomotives or 
locomotive engines intended for use in test programsplanned or 
anticipated over the course of a subsequent two-yearperiod. Unless 
otherwise required by the Director, Engine Programs andCompliance 
Division, a manufacturer or remanufacturer requesting suchan exemption 
need only furnish the information required by paragraphs(a)(1) and 
(d)(2) of this section along with a description of therecordkeeping and 
control procedures that will be employed to assurethat the locomotives 
or locomotive engines are used for purposesconsistent with paragraph (a) 
of this section.
    (g) For locomotives being used for the purpose of developing 
afundamentally new emission control technology related either to 
analternative fuel or an aftertreatment device, the Administrator 
mayexempt the locomotive from some or all of the applicable

[[Page 538]]

standards of this part for the full useful life of thelocomotive, 
subject to the provisions of paragraphs (a) through (f) ofthis section.



Sec. 92.906  Manufacturer-owned, remanufacturer-owned exemption and displayexemption.

    (a) Any manufacturer-owned or remanufacturer-owned locomotive 
orlocomotive engine is exempt from Sec. 92.1103, withoutapplication, if 
the manufacturer complies with the following terms andconditions:
    (1) The manufacturer or remanufacturer must establish, maintain,and 
retain the following adequately organized and indexed informationon each 
exempted locomotive or locomotive engine:
    (i) Locomotive or engine identification number;
    (ii) Use of the locomotive or engine on exempt status; and
    (iii) Final disposition of any locomotive or engine removed 
fromexempt status.
    (2) The manufacturer or remanufacturer must provide right of 
entryand access to these records to EPA Enforcement Officers as outlined 
inSec. 92.208.
    (3) The manufacturer or remanufacturer must permanently affix alabel 
to each locomotive or locomotive engine on exempt status, unlessthe 
requirement is waived or an alternate procedure is approved by 
theDirector, Engine Programs and Compliance Division. This label should:
    (i) Be affixed in a readily visible portion of the locomotive 
orlocomotive engine;
    (ii) Be attached in such a manner that cannot be removed 
withoutdestruction or defacement;
    (iii) State in the English language and in block letters andnumerals 
of a color that contrasts with the background of the label,the following 
information:
    (A) The label heading ``Emission ControlInformation'';
    (B) Full corporate name and trademark of manufacturer 
orremanufacturer;
    (C) Engine displacement, engine family identification, and modelyear 
of engine; or person of office to be contacted for furtherinformation 
about the engine;
    (D) The statement ``This locomotive or locomotive engine isexempt 
from the prohibitions of 40 CFR 92.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents 
amanufacturer or remanufacturer from including any other information 
itdesires on the label.
    (5) The locomotive or locomotive engine is not used in revenue-
generating service, or sold.
    (b) Display exemption. An uncertified locomotive or locomotiveengine 
that is to be used solely for display purposes, and that willonly be 
operated incident and necessary to the display purpose, andwill not be 
sold unless an applicable certificate of conformity hasbeen obtained for 
the locomotive or engine, is exempt without requestfrom the standards of 
this part.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July13, 2005]



Sec. 92.907  Non-locomotive-specific engine exemption.

    (a) For manufacturers selling non-locomotive-specific engines tobe 
used as propulsion engines in remanufactured locomotives, 
suchlocomotives and engines are exempt, provided:
    (1) The engines are covered by a certificate of conformity 
issuedunder 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and usedunder 
the certificate for non-locomotive use than for use inlocomotives;
    (3) The number of such engines exempted under this paragraph (a)does 
not exceed:
    (i) 50 per manufacturer in any calendar year, where EPA 
determinesthat the use of the non-locomotive-specific engines will 
result in asignificantly greater degree of emission control over the 
lifetime ofthe locomotive than using remanufactured engines certified 
under thispart 92; or
    (ii) 25 per manufacturer in any calendar year, where EPA has 
notdetermined that the use of the non-locomotive-specific engines 
willresult in a significantly greater degree of emission control over 
thelifetime of the locomotive than using remanufactured engines 
certifiedunder this part 92;

[[Page 539]]

    (4) The Administrator has approved the exemption as specifiedin 
paragraph (e) of this section.
    (b) For manufacturers of freshly manufactured switch 
locomotivespowered by non-locomotive-specific engines, such freshly 
manufacturedswitch locomotives are exempt, provided:
    (1) The engines are covered by a certificate of conformity 
issuedunder 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and usedunder 
the certificate for non-locomotive use than for use inlocomotives;
    (3) The number of such locomotives sold or leased by thelocomotive 
manufacturer within any three-year period, and exemptedunder this 
paragraph (b) does not exceed 30; and
    (4) The Administrator has approved the exemption as specified 
inparagraph (e) of this section.
    (c)(1) The remanufacture of locomotive engines that have 
beenexempted under this section is exempt without request provided 
thatthe remanufacturer remanufactures them to a previously-
certifiedconfiguration, or to be equivalent to engines that have 
beenpreviously certified under this part or 40 CFR part 89.
    (2) The remanufacture of non-locomotive-specific engines that 
wereused in locomotives prior to January 1, 2000 is exempt from 
therequirements of this part provided: The remanufacturer 
remanufacturesthem to be equivalent to engines that have been previously 
certifiedunder this part or 40 CFR part 89, or demonstrates that 
theNOX emissions from the remanufactured locomotive engineare 
at least 40 percent less than its emissions prior tocertification; and 
the Administrator has approved the exemption asspecified in paragraph 
(e) of this section.
    (d) Manufacturers and remanufacturers of engines and/orlocomotives 
exempted under this section shall:
    (1) Report annually to EPA the number of engines exempted 
underparagraph (a) of this section;
    (2) Report annually to EPA the number of locomotives exemptedunder 
paragraph (b) of this section; and
    (3) Upon the Administrator's request, provide test data showingthe 
emissions of the engine or locomotive when it is operated at theactual 
in-use locomotive power points.
    (e)(1) Manufacturers and remanufacturers seeking an exemptionunder 
this section shall notify the Administrator of such intent atleast 90 
days prior to selling or placing into service the locomotivesor 
locomotive engines.
    (2) The Administrator shall deny a non-locomotive-specificexemption 
in any case where he/she has evidence that approving such anexemption 
would be inappropriate because of adverse environmental oreconomic 
impacts.
    (3) When denying an exemption, the Administrator shall notify 
themanufacturer or remanufacturer of EPA's decision to deny or 
considerdenying the exemption within 60 days of the manufacturer's 
orremanufacturer's notification in paragraph (e)(1) of this section.
    (4) Unless the Administrator notifies the manufacturer 
orremanufacturer of EPA's decision to deny or consider denying 
theexemption within 60 days of the manufacturer's or 
remanufacturer'snotification in paragraph (e)(1) of this section, the 
exemption shallbe considered approved 90 days of the manufacturer's 
orremanufacturer's notification.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July13, 2005]



Sec. 92.908  National security exemption.

    A manufacturer or remanufacturer requesting a national 
securityexemption must state the purpose for which the exemption is 
requiredand the request must be endorsed by an agency of the 
federalgovernment charged with responsibility for national defense.



Sec. 92.909  Export exemptions.

    (a) A new locomotive or locomotive engine intended solely forexport, 
and so labeled or tagged on the outside of any container, thelocomotive 
and on the engine itself, is subject to the provisions ofSec. 92.1103, 
unless the importing country has newlocomotive or new locomotive engine 
emission standards which differfrom EPA standards.
    (b) For the purpose of paragraph (a) of this section, a 
countryhaving no standards whatsoever is deemed to be a

[[Page 540]]

country havingemission standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of 
exportunder paragraph (a) of this section, that such exemption is void 
abinitio with respect to a new locomotive or locomotive engineintended 
solely for export, where such locomotive or locomotive engineis sold, or 
offered for sale, to an ultimate purchaser or otherwisedistributed or 
introduced into commerce in the United States forpurposes other than 
export.



Sec. 92.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request 
madepursuant to Sec. 92.905 or Sec. 92.908, EPAdetermines it is 
appropriate to grant such an exemption, a memorandumof exemption is to 
be prepared and submitted to the person requestingthe exemption. The 
memorandum is to set forth the basis for theexemption, its scope, and 
such terms and conditions as are deemednecessary. Such terms and 
conditions generally include, but are notlimited to, agreements by the 
applicant to conduct the exempt activityin the manner described to EPA, 
create and maintain adequate recordsaccessible to EPA at reasonable 
times, employ labels for the exemptlocomotives or engines setting forth 
the nature of the exemption, takeappropriate measures to assure that the 
terms of the exemption aremet, and advise EPA of the termination of the 
activity and theultimate disposition of the locomotives or engines.
    (b) Any exemption granted pursuant to paragraph (a) of thissection 
is deemed to cover any subject locomotive or engine only tothe extent 
that the specified terms and conditions are complied with.A breach of 
any term or condition causes the exemption to be void abinitio with 
respect to any locomotive or engine. Consequently, thecausing or the 
performing of an act prohibited underSec. 92.1103(a)(1) or (a)(3), 
other than in strictconformity with all terms and conditions of this 
exemption, rendersthe person to whom the exemption is granted, and any 
other person towhom the provisions of Sec. 92.1103(a) are 
applicable,liable to suit under sections 204 and 205 of the Act.

    Effective Date Note: At 63 FR 19077, Apr. 16, 1998,Sec. 92.910 was 
added. This section contains informationcollection and recordkeeping 
requirements and will not becomeeffective until approval has been given 
by the Office of Managementand Budget.



Sec. 92.911  Submission of exemption requests.

    Requests for exemption or further information concerningexemptions 
and/or the exemption request review procedure should beaddressed to: 
Group Manager, Engine Compliance Programs Group, EnginePrograms and 
Compliance Division U.S. Environmental Protection Agency,6403-J, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.



Sec. 92.912  Staged-assembly exemption.

    You may ask us to provide a temporary exemption to allow you 
tocomplete production of your engines at different facilities, as longas 
you maintain control of the engines until they are in theircertified 
configuration. We may require you to take specific steps toensure that 
such engines are in their certified configuration beforereaching the 
ultimate purchaser. You may request an exemption underthis section in 
your application for certification, or in a separatesubmission.

[70 FR 40457, July 13, 2005]



Subpart K_Requirements Applicable to Owners and Operatorsof Locomotives 
                         and Locomotive Engines



Sec. 92.1001  Applicability.

    The requirements of this subpart are applicable to railroads andall 
other owners and operators of locomotives and locomotive enginessubject 
to the provisions of subpart A of this part, except asotherwise 
specified.



Sec. 92.1002  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.1003  In-use testing program.

    (a) Applicability. This section applies to all Class Ifreight 
railroads, beginning on January 1, 2005.
    (b) Testing requirements. Each railroad subject to theprovisions of 
this section

[[Page 541]]

shall annually test a sample oflocomotives in its fleet. For the purpose 
of this section, arailroad's fleet includes both the locomotives that it 
owns and thelocomotives that it is leasing.
    (1)(i) Except as specified in paragraphs (b)(1) (ii) and (iii) 
ofthis section, the number of locomotives to be tested shall be at 
least0.15 percent of the average number of locomotives in the 
railroad'sfleet during the previous calendar year (i.e., the number 
tested shallbe 0.0015 multiplied by the number of locomotives in the 
fleet,rounded up to the next whole number).
    (ii) After December 31, 2015, the number of locomotives to betested 
by railroads with 500 or more locomotives shall be at least0.10 percent 
of the average number of locomotives in the railroad'sfleet during the 
previous calendar year (i.e., the number tested shallbe 0.0010 
multiplied by the number of locomotives in the fleet,rounded up to the 
next whole number). After December 31, 2015, thenumber of locomotives to 
be tested by railroads with fewer than 500locomotives shall be zero. The 
provisions of this paragraph (b)(1)(ii)apply only when:
    (A) No new locomotive emission standards have taken effect duringthe 
previous 5 years;
    (B) Locomotive emission controls have not changed 
fundamentally,during the previous 5 years, in any manner that could 
reasonably beexpected to have the potential to significantly affect 
emissionsdurability; and
    (C) Testing during the previous 5 years has shown, to 
thesatisfaction of the Administrator, that the degree of 
noncompliancefor tested locomotives is low enough that the higher rate 
of testingspecified in paragraph (b)(1)(i) of this section is not 
needed.
    (iii) The Administrator may allow a railroad to perform a 
smallernumber of tests than specified in paragraphs (b)(1) (i) or (ii) 
ofthis section, where he/she determines that the number of 
testsspecified in paragraphs (b)(1)(i) or (ii) of this section is 
notnecessary.
    (2) Testing shall be performed according to the test procedures 
insubpart B of this part, unless otherwise approved by theAdministrator.
    (c) Test locomotive selection. (1)(i) A representativesample of 
locomotives shall be randomly selected for testing.
    (ii) Unless otherwise specified by the Administrator, theselection 
shall be made by the railroad.
    (iii) The railroad shall select locomotives from each 
manufacturerand remanufacturer, and from each tier level (e.g., Tier 0, 
Tier 1 andTier 2) in proportion to their numbers in the railroad's 
fleet, exceptwhere specified or allowed otherwise by the Administrator.
    (iv) Locomotives tested during the previous year shall be 
excludedfrom the sample.
    (v) Locomotives may not be excluded from the sample because 
ofvisible smoke, a history of durability problems, or other evidence 
ofmalmaintenance.
    (2)(i) Locomotives selected for testing according to theprovisions 
of this section shall have been certified in compliancewith requirements 
in subpart A of this part, and shall have beenoperated for at least 100 
percent of their useful lives.
    (ii) Where the number of locomotives that have been operated forat 
least 100 percent of their useful lives is not large enough tofulfill 
the testing requirement, locomotives still within their usefullives 
shall be tested. In this case, the locomotives must have beenoperated 
longer than at least 80 percent of the locomotives in therailroad's 
fleet.
    (3) Where specified by the Administrator, the railroad shall 
testspecified locomotives in its fleet, including locomotives that do 
notmeet the criteria specified in paragraph (c)(2) of this section.
    (d) Reporting requirements. All testing done in compliancewith the 
provisions of this section shall be reported to EPA withinthirty 
calendar days of the end of each year. At a minimum, eachreport shall 
contain the following:
    (1) Full corporate name and address of the railroad providing 
thereport.
    (2) For each locomotive tested, the following:

[[Page 542]]

    (i) Corporate name of the manufacturer and lastremanufacturer(s) 
(including both certificate holder and installer,where different) of the 
locomotive, and the corporate name of themanufacturer or last 
remanufacturer(s) of the engine if different thanthat of the 
manufacturer or remanufacturer(s) of the locomotive;
    (ii) Year, and if known month of original manufacture of 
thelocomotive and the engine, and the manufacturer's model designation 
ofthe locomotive and manufacturer's model designation of the engine, 
andthe locomotive identification number;
    (iii) Year, and if known month that the engine last 
underwentremanufacture, and the engine remanufacturer's designation 
whicheither reflects, or most closely reflects, the engine after the 
lastremanufacture, and the engine family identification;
    (iv) The number of MW-hrs and miles (where available) thelocomotive 
has been operated since its last remanufacture; and
    (v) The emission test results for all measured pollutants.
    (e) Any railroad that performed no emission testing during a 
givenyear is exempt from the reporting requirements described in 
paragraph(d) of this section for that year.
    (f) In lieu of some or all of the test data required by thissection, 
railroads may submit equivalent emission data collected forother 
purposes. The Administrator may also allow emission datacollected using 
other testing or sampling procedures to be submittedin lieu of some or 
part of the data required by this section withadvance approval.
    (g) All reports submitted to EPA in compliance with the provisionsof 
this subpart must be addressed to: Group Manager, Engine 
CompliancePrograms Group, Engine Programs and Compliance Division 6403-
J,Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW.,Washington, DC 20460.



Sec. 92.1004  Maintenance and repair.

    (a) Unless otherwise approved by the Administrator, all owners 
oflocomotives subject to the provisions of this part shall ensure 
thatall emission-related maintenance is performed on the locomotives, 
asspecified in the maintenance instructions provided by the 
certifyingmanufacturer or remanufacturer in compliance withSec. 92.211 
(or maintenance that is equivalent to themaintenance specified by the 
certifying manufacturer or remanufacturerin terms of maintaining 
emissions performance).
    (b) Unless otherwise approved by the Administrator, allmaintenance 
and repair of locomotives and locomotive engines subjectto the 
provisions of this part performed by any owner, operator orother 
maintenance provider, including maintenance that is not coveredby 
paragraph (a) of this section, shall be performed, using goodengineering 
judgement, in such a manner that the locomotive orlocomotive engine 
continues (after the maintenance or repair) to themeet the emission 
standards or family emission limits (as applicable)it was certified as 
meeting prior to the need for maintenance orrepair.
    (c) The owner of the locomotive shall maintain records of 
allmaintenance and repair that could reasonably affect the 
emissionperformance of any locomotive or locomotive engine subject to 
theprovision of this part.



Sec. 92.1005  In-use locomotives.

    (a)(1) Any Class I railroad subject to the provisions of thissubpart 
shall supply to the Administrator, upon request, in-uselocomotives, 
selected by the Administrator. The number of locomotiveswhich the 
Administrator requests under this paragraph (a)(1) shall notexceed five 
locomotives per railroad per calendar year. Theselocomotives or engines 
shall be supplied for testing at suchreasonable time and place and for 
such reasonable periods as theAdministrator may require. The 
Administrator shall make reasonableallowances to the railroad to 
schedule the supply of locomotives fortesting in such a manner that it 
minimizes disruption of itsoperational schedule.
    (2) Any non-Class I railroad or other entity subject to 
theprovisions of this subpart shall supply to the Administrator, 
uponrequest, in-use locomotives, selected by the Administrator. The 
numberof locomotives which the Administrator requests

[[Page 543]]

under thisparagraph (a)(2) shall not exceed two locomotives per railroad 
(orother entity) per calendar year. These locomotives or engines shall 
besupplied for testing at such reasonable time and place and for 
suchreasonable periods as the Administrator may require. The 
Administratorshall make reasonable allowances to the railroad or other 
entity toschedule the supply of locomotives for testing in such a manner 
thatit minimizes disruption of its operational schedule. The 
Administratorshall request locomotives under this paragraph (a)(2) only 
forpurposes which cannot be accomplished using locomotives supplied 
underparagraph (a)(1) of this section.
    (b) Any railroad or other entity subject to the provisions of 
thissubpart shall make reasonable efforts to supply manufacturers 
andremanufacturers of locomotives and locomotive engines with the 
testlocomotives and locomotive engines needed to fulfill the in-
usetesting requirements contained in subpart G of this part.



Sec. 92.1006  Refueling requirements.

    (a) Refueling equipment used by a locomotive operator forlocomotives 
fueled with a volatile fuel shall be designed in such amanner so as not 
to render inoperative or reduce the effectiveness ofthe controls on the 
locomotive that are intended to minimize theescape of fuel vapors.
    (b) Hoses used to refuel gaseous-fueled locomotives shall not 
bedesigned to be bled or vented to the atmosphere under normal 
operatingconditions.



Sec. 92.1007  Remanufacturing requirements.

    (a) See the definition of ``remanufacture'' inSec. 92.2 to 
determine if you are remanufacturing yourlocomotive or engine. (Note: 
Replacing power assemblies one at atime may qualify as remanufacturing, 
depending on the interval betweenreplacement.)
    (b) See the definition of ``new'' inSec. 92.2 to determine if 
remanufacturing your locomotivemakes it subject to the requirements of 
this part. If the locomotiveis considered to be new, it is subject to 
the certificationrequirements of this part, unless it is exempt under 
subpart J of thispart. The standards to which your locomotive is subject 
will depend onfactors such as the following:
    (1) Its date of original manufacture.
    (2) The FEL to which it was previously certified, which is listedon 
the ``Locomotive Emission Control Information'' label.
    (3) Its power rating (whether it is above or below 2300 hp).
    (4) The calendar year in which it is being remanufactured.
    (c) You may comply with the certification requirements of thispart 
for your remanufactured locomotive by either obtaining your 
owncertificate of conformity as specified in subpart C of this part or 
byhaving a certifying remanufacturer include your locomotive under 
itscertificate of conformity. In either case, your 
remanufacturedlocomotive must be covered by a certificate before it is 
reintroducedinto service.
    (d) If you do not obtain your own certificate of conformity fromEPA, 
contact a certifying remanufacturer to have your locomotiveincluded 
under its certificate of conformity. Confirm with thecertificate holder 
that your locomotive's model, date of originalmanufacture, previous FEL, 
and power rating allow it to be covered bythe certificate. You must do 
all of the following:
    (1) Comply with the certificate holder's emission-
relatedinstallation instructions.
    (2) Provide to the certificate holder the information itidentifies 
as necessary to comply with the requirements of this part.
    (e) For parts unrelated to emissions and emission-related partsnot 
addressed by the certificate holder in the emission-relatedinstallation 
instructions, you may use parts from any source. Foremission-related 
parts listed by the certificate holder in theemission-related 
installation instructions, you must either use thespecified parts or 
parts certified under 40 CFR 1033.645 forremanufacturing. If you believe 
that the certificate holder hasincluded as emission-related parts, parts 
that are actually unrelatedto emissions, you may ask us to exclude such

[[Page 544]]

parts from theemission-related installation instructions. (Note: 
Thisparagraph (e) does not apply with respect to parts for 
maintenanceother than remanufacturing; see Sec. 92.1004 for 
provisionsrelated to general maintenance.)
    (f) Failure to comply with this section is a violation ofSec. 
92.1102(a)(1).

    Effective Date Note: At 73 FR 37195, June 30, 2008,Sec. 92.1007 was 
added, effective July 7, 2008.



       Subpart L_General Enforcement Provisions and ProhibitedActs



Sec. 92.1101  Applicability.

    The requirements of this subpart are applicable to allmanufacturers, 
remanufacturers, owners and operators of locomotivesand locomotive 
engines subject to the provisions of subpart A of thispart.



Sec. 92.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i)(A) In the case of a manufacturer or remanufacturer of 
newlocomotives or new locomotive engines, the sale, the offering 
forsale, the introduction into commerce, the delivery for 
introductioninto commerce, or the distribution in commerce of any new 
locomotiveor new locomotive engine manufactured or remanufactured after 
theeffective date of applicable emission standards under this 
part,unless such locomotive or locomotive engine is covered by 
acertificate of conformity issued (and in effect) under regulationsfound 
in this part. (Introduction into commerce includes placement ofa new 
locomotive or new locomotive engine back into service 
followingremanufacturing.)
    (B) The manufacture or remanufacture of a locomotive or 
locomotiveengine for the purpose of an act listed in paragraph 
(a)(1)(i)(A) ofthis section unless such locomotive or locomotive engine 
is covered bya certificate of conformity issued (and in effect) under 
regulationsfound in this part prior to its introduction into commerce.
    (ii) In the case of any person, except as provided in Subpart I 
ofthis part, the importation into the United States of any locomotive 
orlocomotive engine manufactured or remanufactured after June 15, 
1998,unless such locomotive or locomotive engine is covered by 
acertificate of conformity issued (and in effect) under regulationsfound 
in this part.
    (2)(i) For a person to fail or refuse to permit access to orcopying 
of records or to fail to make reports or provide informationrequired 
under this part.
    (ii) For a person to fail or refuse to permit entry, testing, 
orinspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to 
havetests performed as required by this part.
    (iv) For a person to fail to establish or maintain records 
asrequired under this part.
    (3)(i) For a person to remove or render inoperative a device 
orelement of design installed on or in a locomotive or locomotive 
enginein compliance with regulations under this part, or to set 
anyadjustable parameter to a setting outside of the range specified 
bythe manufacturer or remanufacturer, as approved in the application 
forcertification by the Administrator.
    (ii) For a person to manufacture, remanufacture, sell or offer 
tosell, or install, a part or component intended for use with, or aspart 
of, a locomotive or locomotive engine, where a principal effectof the 
part or component is to bypass, defeat, or render inoperative adevice or 
element of design installed on or in a locomotive orlocomotive engine in 
compliance with regulations issued under thispart, and where the person 
knows or should know that the part orcomponent is being offered for sale 
or installed for this use or putto such use.
    (iii) For a locomotive owner or operator to fail to comply withthe 
maintenance and repair requirements of Sec. 92.1004.
    (4) For a manufacturer or a remanufacturer of a new locomotive 
orlocomotive engine subject to standards prescribed under this part:

[[Page 545]]

    (i) To sell, offer for sale, or introduce or deliver forintroduction 
into commerce, a new locomotive or new locomotive engineunless the 
manufacturer or remanufacturer has complied with therequirements of 
Sec. 92.1107.
    (ii) To sell, offer for sale, or introduce or deliver 
forintroduction into commerce, a new locomotive or new locomotive 
engineunless all required labels and tags are affixed to the engine 
inaccordance with Sec. 92.212.
    (iii) To fail or refuse to comply with the requirements ofSec. 
92.1108.
    (iv) Except as provided in Sec. 92.211, to providedirectly or 
indirectly in any communication to the ultimate purchaseror a subsequent 
purchaser that the coverage of a warranty under theAct is conditioned 
upon use of a part, component, or systemmanufactured by the manufacturer 
or remanufacturer or a person actingfor the manufacturer or 
remanufacturer or under its control, orconditioned upon service 
performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions ofthe 
warranty under Sec. 92.1107.
    (5) For a manufacturer or remanufacturer of locomotives todistribute 
in commerce, sell, offer for sale, or deliver forintroduction into 
commerce new locomotives (including all locomotiveswhich contain a new 
engine) not covered by a certificate ofconformity.
    (b) For the purposes of enforcement of this part, the 
followingapply:
    (1) Nothing in paragraph (a)(3) of this section is to be construedto 
require the use of any manufacturer's or remanufacturer's parts 
inmaintaining or repairing a locomotive or locomotive engine.
    (2) Actions for the purpose of repair or replacement of a deviceor 
element of design or any other item are not considered prohibitedacts 
under paragraph (a)(3)(i) of this section if the action is anecessary 
and temporary procedure, the device or element is replacedupon 
completion of the procedure, and the action results in the 
properfunctioning of the device or element of design.
    (3) Actions for the purpose of remanufacturing a locomotive arenot 
considered prohibited acts under paragraph (a)(3)(i) of thissection if 
the new remanufactured locomotive is covered by acertificate of 
conformity and complies with all applicablerequirements of this part.



Sec. 92.1104  General enforcement provisions.

    (a) Information collection provisions. (1)(i) Everymanufacturer or 
remanufacturer of new locomotives and/or newlocomotive engines and other 
persons subject to the requirements ofthis part must establish and 
maintain records, perform tests, makereports and provide information the 
Administrator may reasonablyrequire to determine whether the 
manufacturer or remanufacturer orother person has acted or is acting in 
compliance with this part or tootherwise carry out the provisions of 
this part, and must, uponrequest of an officer or employee duly 
designated by theAdministrator, permit the officer or employee at 
reasonable times tohave access to and copy such records. The 
manufacturer orremanufacturer shall comply in all respects with the 
requirements ofsubpart E of this part.
    (ii) Every manufacturer, remanufacturer, owner, or operator 
oflocomotives or locomotive engines exempted from the standards 
orrequirements of this part must establish and maintain records, 
performtests, make reports and provide information the Administrator 
mayreasonably require regarding the emissions of such locomotives 
orlocomotive engines.
    (2) For purposes of enforcement of this part, an officer oremployee 
duly designated by the Administrator, upon presentingappropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of 
themanufacturer or remanufacturer, or of any person whom the 
manufactureror remanufacturer engaged to perform any activity required 
underparagraph (a)(1) of this section, for the purposes of inspecting 
orobserving any activity conducted pursuant to paragraph (a)(1) of 
thissection; and
    (ii) To inspect records, files, papers, processes, controls, 
andfacilities used in performing an activity required by paragraph 
(a)(1)of this section, by the manufacturer or remanufacturer or by

[[Page 546]]

aperson whom the manufacturer or remanufacturer engaged to perform 
theactivity.
    (b) Exemption provision. The Administrator may exempt a 
newlocomotive or new locomotive engine from Sec. 92.1103 uponsuch terms 
and conditions as the Administrator may find necessary forthe purpose of 
export, research, investigations, studies,demonstrations, or training, 
or for reasons of national security, orfor other purposes allowed by 
subpart J of this part.
    (c) Importation provision. (1) A new locomotive orlocomotive engine, 
offered for importation or imported by a person inviolation of Sec. 
92.1103 is to be refused admission intothe United States, but the 
Secretary of the Treasury and theAdministrator may, by joint regulation, 
provide for deferring a finaldetermination as to admission and 
authorizing the delivery of such alocomotive or locomotive engine 
offered for import to the owner orconsignee thereof upon such terms and 
conditions (including thefurnishing of a bond) as may appear to them 
appropriate to insure thatthe locomotive or locomotive engine will be 
brought into conformitywith the standards, requirements, and limitations 
applicable to itunder this part.
    (2) If a locomotive or locomotive engine is finally refusedadmission 
under this paragraph (c), the Secretary of the Treasuryshall cause 
disposition thereof in accordance with the customs lawsunless it is 
exported, under regulations prescribed by the Secretary,within 90 days 
of the date of notice of the refusal or additional timeas may be 
permitted pursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not bemade 
in such manner as may result, directly or indirectly, in thesale, to the 
ultimate consumer, of a new locomotive or locomotiveengine that fails to 
comply with applicable standards of theAdministrator under this part.
    (d) Export provision. A new locomotive or locomotive engineintended 
solely for export, and so labeled or tagged on the outside ofthe 
container if used and on the engine, shall be subject to theprovisions 
of Sec. 92.1103, except that if the country thatis to receive the 
locomotive or locomotive engine has emissionstandards that differ from 
the standards prescribed under subpart A ofthis part, then the 
locomotive or locomotive engine must comply withthe standards of the 
country that is to receive the locomotive orlocomotive engine.
    (e) Recordkeeping. Except where specified otherwise, recordsrequired 
by this part must be kept for eight (8) years.



Sec. 92.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction 
torestrain violations of Sec. 92.1103(a).
    (b) Actions to restrain violations of Sec. 92.1103(a)must be 
brought by and in the name of the United States. In an action,subpoenas 
for witnesses who are required to attend a district court inany district 
may run into any other district.



Sec. 92.1106  Penalties.

    (a) Violations. A violation of the requirements of thissubpart is a 
violation of the applicable provisions of the Act,including sections 
213(d) and 203, and is subject to the penaltyprovisions thereunder.
    (1) A person who violates Sec. 92.1103 (a)(1), (a)(4),or (a)(5), or 
a manufacturer, remanufacturer, dealer or railroad whoviolates Sec. 
92.1103(a)(3)(i) or (iii) is subject to acivil penalty of not more than 
$32,500 for each violation.
    (2) A person other than a manufacturer, remanufacturer, dealer, 
orrailroad who violates Sec. 92.1103(a)(3)(i) or any personwho violates 
Sec. 92.1103(a)(3)(ii) is subject to a civilpenalty of not more than 
$2,750 for each violation.
    (3) A violation with respect to Sec. 92.1103(a)(1), (a)(3)(i), 
(a)(3)(iii), (a)(4), or (a)(5) constitutes a separate offensewith 
respect to each locomotive or locomotive engine.
    (4) A violation with respect to Sec. 92.1103(a)(3)(ii)constitutes a 
separate offense with respect to each part or component.Each day of a 
violation with respect to Sec. 92.1103(a)(5)constitutes a separate 
offense.
    (5) A person who violates Sec. 92.1103(a)(2) is subjectto a civil 
penalty of not more than $32,500 per day of violation.

[[Page 547]]

    (6) The maximum penalty values listed in this section areshown for 
calendar year 2004. Maximum penalty limits for later yearsmay be 
adjusted based on the Consumer Price Index. The specificregulatory 
provisions for changing the maximum penalties, published in40 CFR part 
19, reference the applicable U.S. Code citation on whichthe prohibited 
action is based.
    (b) Civil actions. The Administrator may commence a civilaction to 
assess and recover any civil penalty under paragraph (a) ofthis section.
    (1) An action under this paragraph (b) may be brought in thedistrict 
court of the United States for the district in which thedefendant 
resides or has the Administrator's principal place ofbusiness, and the 
court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessedunder 
this paragraph (b), the court is to take into account thegravity of the 
violation, the economic benefit or savings (if any)resulting from the 
violation, the size of the violator's business, theviolator's history of 
compliance with Title II of the Act, actiontaken to remedy the 
violation, the effect of the penalty on theviolator's ability to 
continue in business, and such other matters asjustice may require.
    (3) In any such action, subpoenas for witnesses who are requiredto 
attend a district court in any district may run into any otherdistrict.
    (c) Administrative assessment of certainpenalties--(1) 
Administrative penalty authority. Inlieu of commencing a civil action 
under paragraph (b) of this section,the Administrator may assess any 
civil penalty prescribed in paragraph(a) of this section, except that 
the maximum amount of penalty soughtagainst each violator in a penalty 
assessment proceeding shall notexceed $270,000, unless the Administrator 
and the Attorney Generaljointly determine that a matter involving a 
larger penalty amount isappropriate for administrative penalty 
assessment. Any suchdetermination by the Administrator and the Attorney 
General is notsubject to judicial review. Assessment of a civil penalty 
shall be byan order made on the record after opportunity for a hearing 
held inaccordance with the procedures found at part 22 of this chapter. 
TheAdministrator may compromise, or remit, with or without 
conditions,any administrative penalty which may be imposed under this 
section.
    (2) Determining amount. In determining the amount of anycivil 
penalty assessed under this paragraph (c), the Administratorshall take 
into account the gravity of the violation, the economicbenefit or 
savings (if any) resulting from the violation, the size ofthe violator's 
business, the violator's history of compliance withTitle II of the Act, 
action taken to remedy the violation, the effectof the penalty on the 
violator's ability to continue in business, andsuch other matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by theAdministrator 
under this paragraph (c) does not affect or limit theAdministrator's 
authority to enforce any provisions of the Act; exceptthat any violation 
with respect to which the Administrator hascommenced and is diligently 
prosecuting an action under this paragraph(c), or for which the 
Administrator has issued a final order notsubject to further judicial 
review and for which the violator has paida penalty assessment under 
this paragraph shall not be the subject ofa civil penalty action under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) 
shallaffect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this paragraph(c) is to 
become final 30 days after its issuance unless a petitionfor judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penaltyis 
assessed in accordance with this paragraph (c) may seek review ofthe 
assessment in the United States District Court for the District 
ofColumbia or for the district in which the violation is alleged to 
haveoccurred, in which such person resides, or where the 
person'sprincipal place of business is located, within the 30-day 
periodbeginning on the date a civil penalty order is issued. The 
personshall simultaneously send a copy of

[[Page 548]]

the filing by certified mailto the Administrator and the Attorney 
General. The Administrator shallfile in the court within 30 days a 
certified copy, or certified index,as appropriate, of the record on 
which the order was issued. The courtis not to set aside or remand any 
order issued in accordance with therequirements of this paragraph (c) 
unless substantial evidence doesnot exist in the record, taken as a 
whole, to support the finding of aviolation or unless the 
Administrator's assessment of the penaltyconstitutes an abuse of 
discretion, and the court is not to imposeadditional civil penalties 
unless the Administrator's assessment ofthe penalty constitutes an abuse 
of discretion. In any proceedings,the United States may seek to recover 
civil penalties assessed underthis section.
    (6) Collection. (i) If any person fails to pay an assessmentof a 
civil penalty imposed by the Administrator as provided in thispart after 
the order making the assessment has become final or after acourt in an 
action brought under paragraph (c)(5) of this section hasentered a final 
judgment in favor of the Administrator, theAdministrator shall request 
that the Attorney General bring a civilaction in an appropriate district 
court to recover the amount assessed(plus interest at rates established 
pursuant to section 6621(a)(2) ofthe Internal Revenue Code of 1986 (26 
U.S.C. 6621(a)(2)) from the dateof the final order or the date of final 
judgment, as the case may be).In such an action, the validity, amount, 
and appropriateness of thepenalty is not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of 
anassessment of a civil penalty as described in paragraph (c)(6)(i) 
ofthis section shall be required to pay, in addition to that amount 
andinterest, the United States' enforcement expenses, 
includingattorney's fees and costs for collection proceedings, and a 
quarterlynonpayment penalty for each quarter during which the failure to 
paypersists. The nonpayment penalty is an amount equal to ten percent 
ofthe aggregate amount of that person's penalties and 
nonpaymentpenalties which are unpaid as of the beginning of such 
quarter.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July13, 2005]



Sec. 92.1107  Warranty provisions.

    (a) The manufacturer or remanufacturer of each locomotive 
orlocomotive engine must warrant to the ultimate purchaser and 
eachsubsequent purchaser or owner that the locomotive or locomotive 
engineis designed, built, and equipped so as to conform at the time of 
saleor time of return to service following remanufacture with 
applicableregulations under section 213 of the Act, and is free from 
defects inmaterials and workmanship which cause such locomotive or 
locomotiveengine to fail to conform with applicable regulations for its 
warrantyperiod (as determined under Sec. 92.10).
    (b) For the purposes of this section, the owner of any locomotiveor 
locomotive engine warranted under this part is responsible for theproper 
maintenance of the locomotive and the locomotive engine. 
Propermaintenance includes replacement and/or service, as needed, at 
theowner's expense at a service establishment or facility of the 
owner'schoosing, of all parts, items, or devices which were in general 
usewith locomotives or locomotive engines prior to 1999. For 
dieselengines, this would generally include replacement or cleaning of 
thefuel delivery and injection system.



Sec. 92.1108  In-use compliance provisions.

    (a) Effective with respect to locomotives and locomotive 
enginessubject to the requirements of this part:
    (1) If the Administrator determines that a substantial number ofany 
class or category of locomotives or locomotive engines, althoughproperly 
maintained and used, do not conform to the regulationsprescribed under 
section 213 of the Act when in actual use throughouttheir useful life 
period (as defined under Sec. 92.2), theAdministrator shall immediately 
notify the manufacturer orremanufacturer of such nonconformity and 
require the manufacturer orremanufacturer to submit a plan for remedying 
the nonconformity

[[Page 549]]

of the locomotives or locomotive engines with respect to whichsuch 
notification is given.
    (i) The manufacturer's or remanufacturer's plan shall provide 
thatthe nonconformity of any such locomotives or locomotive engines 
whichare properly used and maintained will be remedied at the expense 
ofthe manufacturer or remanufacturer.
    (ii) If the manufacturer or remanufacturer disagrees with 
suchdetermination of nonconformity and so advises the Administrator, 
theAdministrator shall afford the manufacturer or remanufacturer 
andother interested persons an opportunity to present their views 
andevidence in support thereof at a public hearing. Unless, as a 
resultof such hearing, the Administrator withdraws such determination 
ofnonconformity, the Administrator shall, within 60 days after 
thecompletion of such hearing, order the manufacturer or 
remanufacturerto provide prompt notification of such nonconformity in 
accordancewith paragraph (a)(2) of this section. The manufacturer 
orremanufacturer shall comply in all respects with the requirements 
ofsubpart G of this part.
    (2) Any notification required to be given by the manufacturer 
orremanufacturer under paragraph (a)(1) of this section with respect 
toany class or category of locomotives or locomotive engines shall 
begiven to ultimate purchasers, subsequent purchasers (if known), 
anddealers (as applicable) in such manner and containing such 
informationas required in Subparts E and H of this part.
    (3)(i) The certifying manufacturer or remanufacturer shall 
furnishwith each new locomotive or locomotive engine written 
instructions forthe proper maintenance and use of the engine by the 
ultimate purchaseras required under Sec. 92.211.
    (ii) The instruction under paragraph (a)(3)(i) of this sectionmust 
not include any condition on the ultimate purchaser's using, 
inconnection with such locomotive or locomotive engine, any component 
orservice (other than a component or service provided without 
chargeunder the terms of the purchase agreement) which is identified 
bybrand, trade, or corporate name. Such instructions also must 
notdirectly or indirectly distinguish between service performed by 
thefranchised dealers of such manufacturer or remanufacturer, or 
anyother service establishments with which such manufacturer 
orremanufacturer has a commercial relationship, and service performed 
byindependent locomotive or locomotive engine repair facilities 
withwhich such manufacturer or remanufacturer has no 
commercialrelationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section maybe 
waived by the Administrator if:
    (A) The manufacturer or remanufacturer satisfies the 
Administratorthat the locomotive or locomotive engine will function 
properly onlyif the component or service so identified is used in 
connection withsuch engine; and
    (B) The Administrator finds that such a waiver is in the 
publicinterest.
    (iv) In addition, the manufacturer or remanufacturer shallindicate 
by means of a label or tag permanently affixed to thelocomotive and to 
the engine that the locomotive and/or the locomotiveengine is covered by 
a certificate of conformity issued for thepurpose of assuring 
achievement of emission standards prescribed undersection 213 of the 
Act. This label or tag shall also containinformation relating to control 
of emissions as prescribed underSec. 92.212.
    (b) The manufacturer or remanufacturer bears all cost obligationany 
dealer incurs as a result of a requirement imposed by paragraph(a) of 
this section. The transfer of any such cost obligation from 
amanufacturer or remanufacturer to a dealer through franchise or 
otheragreement is prohibited.
    (c) If a manufacturer or remanufacturer includes in anadvertisement 
a statement respecting the cost or value of emissioncontrol devices or 
systems, the manufacturer or remanufacturer shallset forth in the 
statement the cost or value attributed to thesedevices or systems by the 
Secretary of Labor (through the Bureau ofLabor Statistics). The 
Secretary of Labor, and his or herrepresentatives, has the same access 
for this purpose to the books,documents, papers, and records of a 
manufacturer or remanufacturer asthe Comptroller General has to

[[Page 550]]

those of a recipient of assistancefor purposes of section 311 of the 
Act.



   Sec. Appendix I to Part 92--EmissionRelated Locomotive and Engine 

                      Parameters and Specifications

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



    Sec. Appendix II to Part92--Interpretive Ruling forSec. 92.705--
                             Remedial Plans

    The following is an interpretive ruling set forth previously byEPA 
for on-highway vehicles. EPA expects to apply the same principlesto 
locomotives.
    (1) The purpose of this ruling is to set forth EPA'sinterpretation 
regarding one aspect of a motor vehicle or motorvehicle engine 
manufacturer's recall liability under section 207(c)(1)of the Clean Air 
Act, 42 U.S.C. 7641(c)(1). This ruling will provideguidance

[[Page 551]]

to vehicle and engine manufacturers to better enablethem to submit 
acceptable remedial plans.
    (2) Section 207(c)(1) requires the Administrator to base a 
recallorder on a determination that a substantial number of in-use 
vehiclesor engines within a given class or category of vehicles or 
engines,although properly maintained and used, fail to conform to 
theregulations prescribed under section 202 when in actual use 
throughouttheir useful lives. After making such a determination, he 
shallrequire the manufacturer to submit a plan to remedy the 
nonconformityof any such vehicles or engines. The plan shall provide 
that themanufacturer will remedy, at the manufacturer's expense, all 
properlymaintained and used vehicles which experienced the 
nonconformityduring their useful lives regardless of their age or 
mileage at thetime of repair.



    Sec. Appendix III to Part 92--Smoke Standards for Non-Normalized 
                              Measurements

                     Table III-1--Equivalent SmokeStandards for Non-Normalized Measurements
----------------------------------------------------------------------------------------------------------------
                  Path length                                               Standards
----------------------------------------------------------------------------------------------------------------
             If thepath length is:                               Then the opacity maynot exceed:
----------------------------------------------------------------------------------------------------------------
                                                           Peak                         Steady-State
              cm                    inches      ----------------------------------------------------------------
                                                    3-sec        30-sec       Tier 0       Tier 1       Tier 2
----------------------------------------------------------------------------------------------------------------
10.0-19.9....................  3.94-7.86.......            7            5            4            3            2
20.0-29.9....................  7.87-11.80......           13           10            7            6            4
30.0-39.9....................  11.81-15.74.....           19           14           10            8            6
40.0-49.9....................  15.75-19.68.....           24           18           13           11            9
50.0-59.9....................  19.69-23.61.....           29           23           16           13           11
60.0-69.9....................  23.62-27.55.....           34           26           19           16           13
70.0-79.9....................  27.56-31.49.....           38           30           22           18           14
80.0-89.9....................  31.50-35.42.....           43           34           25           21           16
90.0-99.9....................  35.43-39.36.....           46           37           27           23           18
100.0-109.9..................  39.37-43.30.....           50           40           30           25           20
110.0-119.9..................  43.31-47.23.....           53           43           32           27           22
120.0-129.9..................  47.24-51.17.....           56           46           35           29           23
130.0-139.9..................  51.18-55.11.....           59           49           37           31           25
140.0-149.9..................  55.12-59.05.....           62           51           39           33           27
150.0-159.9..................  59.06-62.98.....           65           54           41           35           28
160.0-169.9..................  62.99-66.92.....           67           56           43           37           30
170.0-179.9..................  66.93-70.86.....           69           58           45           39           32
180.0-189.9..................  70.87-74.79.....           71           60           47           40           33
190.0-199.9..................  74.80-78.73.....           73           62           49           42           35
=200..............  =78.7           75           64           51           44           36
                                4.
----------------------------------------------------------------------------------------------------------------



   Sec. Appendix IV to Part 92--Guidelinesfor Determining Equivalency 
                  Between Emission Measurement Systems

    This appendix describes a series of correlation criteria that 
EPAconsiders to be reasonable for the purpose of 
demonstratingequivalency between two test systems designed to measure 
the sameemissions during FTP locomotive testing. These criteria are 
presentedhere only as guidelines. When requested to make a finding 
ofequivalency, EPA could base its decision on criteria other than 
thoselisted here, where EPA has reason to believe that these criteria 
arenot appropriate.
    (a) General approach. (1) Multiple tests should be conductedin pairs 
on the same locomotive or engine using each of themeasurement systems.
    (2) Variations for other parameters, such as test fuel, should 
beminimized to the maximum extent possible.
    (3) Locomotive and/or locomotive engine tests conducted inaccordance 
with the provisions of Subpart B of this part arepreferred. Where 
appropriate, engine tests conducted in accordancewith 40 CFR part 89 may 
also be used.
    (4) Equivalency of the systems should be determined by 
comparingindividual modal data, individual cycle-weighted data, and the 
averagecycle-weighted results from each system.
    (b) Correlation criteria for particulate measurements. (1)The 
correlation coefficient (R\2\) for individual modal data should be0.90, 
or higher.
    (2) The maximum deviation between any pair of cycle-weighted 
datashould be 15 percent, or less.

[[Page 552]]

    (3) The ratio of average cycle-weighted results using thealternate 
system to the average cycle-weighted results using thespecified Part 92 
system (i.e., avgalt/avgspc)should be between 0.97 
and 1.05.
    (c) Correlation criteria for other measurements. 
Correlationparameters for gaseous pollutants should be better than 
thosespecified in paragraph (b) of this appendix for 
particulatemeasurements.
    (d) Minimum number of tests. The recommended minimum numberof tests 
with each system necessary to determine equivalency is:
    (1) Four locomotive or locomotive engine tests, conducted 
inaccordance with the provisions of subpart B of this part; or
    (2) Seven 8-mode nonroad engine tests, conducted in accordancewith 
the provisions of 40 CFR part 89.
    (e) Statistical outliers. Statistical outliers may beexcluded 
consistent with good engineering judgement. Outliers shouldbe replaced 
by rerunning each excluded test point. Where more than oneoutlier is 
excluded, is recommended to perform one additional pair oftests (in 
addition to the minimum number specified in paragraph (d) ofthis 
appendix) for each two outliers excluded.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July13, 2005]



PART 93_DETERMINING CONFORMITY OF FEDERALACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS--Table of Contents




    Subpart A_Conformity to State or Federal ImplementationPlans of 
    Transportation Plans, Programs, and Projects Developed,Funded or 
       Approved Under Title 23 U.S.C. or the Federal Transit Laws

Sec.
93.100 Purpose.
93.101 Definitions.
93.102 Applicability.
93.103 Priority.
93.104 Frequency of conformity determinations.
93.105 Consultation.
93.106 Content of transportation plans and timeframe ofconformity 
          determinations.
93.107 Relationship of transportation plan and TIPconformity with the 
          NEPA process.
93.108 Fiscal constraints for transportation plans and TIPs.
93.109 Criteria and procedures for determining conformity 
          oftransportation plans, programs, and projects: General.
93.110 Criteria and procedures: Latest planning assumptions.
93.111 Criteria and procedures: Latest emissions model.
93.112 Criteria and procedures: Consultation.
93.113 Criteria and procedures: Timely implementation ofTCMs.
93.114 Criteria and procedures: Currently conformingtransportation plan 
          and TIP.
93.115 Criteria and procedures: Projects from atransportation plan and 
          TIP.
93.116 Criteria and procedures: Localized CO,PM10, and 
          PM2.5 violations (hot-spots).
93.117 Criteria and procedures: Compliance withPM10 and 
          PM2.5 control measures.
93.118 Criteria and procedures: Motor vehicle emissionsbudget.
93.119 Criteria and procedures: Interim emissions in areaswithout motor 
          vehicle emissions budgets.
93.120 Consequences of control strategy implementation planfailures.
93.121 Requirements for adoption or approval of projects byother 
          recipients of funds designated under title 23 U.S.C. or 
          theFederal Transit Laws.
93.122 Procedures for determining regional transportation-related 
          emissions.
93.123 Procedures for determining localized CO,PM10, and 
          PM2.5 concentrations (hot-spotanalysis).
93.124 Using the motor vehicle emissions budget in theapplicable 
          implementation plan (or implementation plan submission).
93.125 Enforceability of design concept and scope andproject-level 
          mitigation and control measures.
93.126 Exempt projects.
93.127 Projects exempt from regional emissions analyses.
93.128 Traffic signal synchronization projects.
93.129 Special exemptions from conformity requirements forpilot program 
          areas.

 Subpart B_Determining Conformity of General Federal Actionsto State or 
                      Federal Implementation Plans

93.150 Prohibition.
93.151 State implementation plan (SIP) revision.
93.152 Definitions.
93.153 Applicability.
93.154 Conformity analysis.
93.155 Reporting requirements.
93.156 Public participation.
93.157 Frequency of conformity determinations.
93.158 Criteria for determining conformity of generalFederal actions.
93.159 Procedures for conformity determinations of generalFederal 
          actions.
93.160 Mitigation of air quality impacts.

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

[[Page 553]]


    Source: 58 FR 62235, Nov. 24, 1993, unlessotherwise noted.



    Subpart A_Conformity to State or Federal ImplementationPlans of 
    Transportation Plans, Programs, and Projects Developed,Funded or 
       Approved Under Title 23 U.S.C. or the Federal Transit Laws

    Source: 62 FR 43801, Aug. 15, 1997, unless otherwisenoted.



Sec. 93.100  Purpose.

    The purpose of this subpart is to implement section 176(c) of 
theClean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), andthe 
related requirements of 23 U.S.C. 109(j), with respect to theconformity 
of transportation plans, programs, and projects which aredeveloped, 
funded, or approved by the United States Department ofTransportation 
(DOT), and by metropolitan planning organizations(MPOs) or other 
recipients of funds under title 23 U.S.C. or theFederal Transit Laws (49 
U.S.C. Chapter 53). This subpart sets forthpolicy, criteria, and 
procedures for demonstrating and assuringconformity of such activities 
to an applicable implementation plandeveloped pursuant to section 110 
and Part D of the CAA.



Sec. 93.101  Definitions.

    Terms used but not defined in this subpart shall have the 
meaninggiven them by the CAA, titles 23 and 49 U.S.C., other 
EnvironmentalProtection Agency (EPA) regulations, or other DOT 
regulations, in thatorder of priority.
    Applicable implementation plan is defined in section 302(q)of the 
CAA and means the portion (or portions) of the implementationplan, or 
most recent revision thereof, which has been approved undersection 110, 
or promulgated under section 110(c), or promulgated orapproved pursuant 
to regulations promulgated under section 301(d) andwhich implements the 
relevant requirements of the CAA.
    CAA means the Clean Air Act, as amended (42 U.S.C. 7401et seq.).
    Cause or contribute to a new violation for a project means:
    (1) To cause or contribute to a new violation of a standard in 
thearea substantially affected by the project or over a region 
whichwould otherwise not be in violation of the standard during the 
futureperiod in question, if the project were not implemented; or
    (2) To contribute to a new violation in a manner that wouldincrease 
the frequency or severity of a new violation of a standard insuch area.
    Clean data means air quality monitoring data determined byEPA to 
meet the requirements of 40 CFR part 58 that indicateattainment of the 
national ambient air quality standard.
    Control strategy implementation plan revision is theimplementation 
plan which contains specific strategies for controllingthe emissions of 
and reducing ambient levels of pollutants in order tosatisfy CAA 
requirements for demonstrations of reasonable furtherprogress and 
attainment (including implementation plan revisionssubmitted to satisfy 
CAA sections 172(c), 182(b)(1), 182(c)(2)(A),182(c)(2)(B), 187(a)(7), 
187(g), 189(a)(1)(B), 189(b)(1)(A), and189(d); sections 192(a) and 
192(b), for nitrogen dioxide; and anyother applicable CAA provision 
requiring a demonstration of reasonablefurther progress or attainment).
    Design concept means the type of facility identified by theproject, 
e.g., freeway, expressway, arterial highway, grade-separatedhighway, 
reserved right-of-way rail transit, mixed-traffic railtransit, exclusive 
busway, etc.
    Design scope means the design aspects which will affect theproposed 
facility's impact on regional emissions, usually as theyrelate to 
vehicle or person carrying capacity and control, e.g.,number of lanes or 
tracks to be constructed or added, length ofproject, signalization, 
access control including approximate numberand location of interchanges, 
preferential treatment for high-occupancy vehicles, etc.
    DOT means the United States Department of Transportation.
    Donut areas are geographic areas outside a metropolitanplanning area 
boundary, but inside the boundary of a nonattainment ormaintenance area

[[Page 554]]

that contains any part of a metropolitanarea(s). These areas are not 
isolated rural nonattainment andmaintenance areas.
    EPA means the Environmental Protection Agency.
    FHWA means the Federal Highway Administration of DOT.
    FHWA/FTA project, for the purpose of this subpart, is anyhighway or 
transit project which is proposed to receive fundingassistance and 
approval through the Federal-Aid Highway program or theFederal mass 
transit program, or requires Federal HighwayAdministration (FHWA) or 
Federal Transit Administration (FTA) approvalfor some aspect of the 
project, such as connection to an interstatehighway or deviation from 
applicable design standards on theinterstate system.
    Forecast period with respect to a transportation plan is theperiod 
covered by the transportation plan pursuant to 23 CFR part 450.
    FTA means the Federal Transit Administration of DOT.
    Highway project is an undertaking to implement or modify ahighway 
facility or highway-related program. Such an undertakingconsists of all 
required phases necessary for implementation. Foranalytical purposes, it 
must be defined sufficiently to:
    (1) Connect logical termini and be of sufficient length to 
addressenvironmental matters on a broad scope;
    (2) Have independent utility or significance, i.e., be usable andbe 
a reasonable expenditure even if no additional 
transportationimprovements in the area are made; and
    (3) Not restrict consideration of alternatives for otherreasonably 
foreseeable transportation improvements.
    Horizon year is a year for which the transportation plandescribes 
the envisioned transportation system according toSec. 93.106.
    Hot-spot analysis is an estimation of likely futurelocalized CO, 
PM10, and/or PM2.5 pollutantconcentrations and a 
comparison of those concentrations to thenational ambient air quality 
standards. Hot-spot analysis assessesimpacts on a scale smaller than the 
entire nonattainment ormaintenance area, including, for example, 
congested roadwayintersections and highways or transit terminals, and 
uses an airquality dispersion model to determine the effects of 
emissions on airquality.
    1-hour ozone NAAQS means the 1-hour ozone national ambientair 
quality standard codified at 40 CFR 50.9.
    8-hour ozone NAAQS means the 8-hour ozone national ambientair 
quality standard codified at 40 CFR 50.10.
    Increase the frequency or severity means to cause a locationor 
region to exceed a standard more often or to cause a violation at 
agreater concentration than previously existed and/or would 
otherwiseexist during the future period in question, if the project were 
notimplemented.
    Isolated rural nonattainment and maintenance areas are areasthat do 
not contain or are not part of any metropolitan planning areaas 
designated under the transportation planning regulations. Isolatedrural 
areas do not have Federally required metropolitan transportationplans or 
TIPs and do not have projects that are part of the emissionsanalysis of 
any MPO's metropolitan transportation plan or TIP.Projects in such areas 
are instead included in statewidetransportation improvement programs. 
These areas are not donut areas.
    Lapse means that the conformity determination for atransportation 
plan or TIP has expired, and thus there is no currentlyconforming 
transportation plan and TIP.
    Limited maintenance plan is a maintenance plan that EPA 
hasdetermined meets EPA's limited maintenance plan policy criteria for 
agiven NAAQS and pollutant. To qualify for a limited maintenance 
plan,for example, an area must have a design value that is 
significantlybelow a given NAAQS, and it must be reasonable to expect 
that a NAAQSviolation will not result from any level of future motor 
vehicleemissions growth.
    Maintenance area means any geographic region of the UnitedStates 
previously designated nonattainment pursuant to the CAAAmendments of 
1990 and subsequently redesignated to attainment subjectto the 
requirement to develop a maintenance plan under section 175A ofthe CAA, 
as amended.

[[Page 555]]

    Maintenance plan means an implementation plan undersection 175A of 
the CAA, as amended.
    Metropolitan planning organization (MPO) means the policyboard of an 
organization created as a result of the designationprocess in 23 U.S.C. 
134(d).
    Milestone has the meaning given in CAA sections 182(g)(1)and 189(c) 
for serious and above ozone nonattainment areas andPM10 
nonattainment areas, respectively. For all othernonattainment areas, a 
milestone consists of an emissions level andthe date on which that level 
is to be achieved as required by theapplicable CAA provision for 
reasonable further progress towardsattainment.
    Motor vehicle emissions budget is that portion of the totalallowable 
emissions defined in the submitted or approved controlstrategy 
implementation plan revision or maintenance plan for acertain date for 
the purpose of meeting reasonable further progressmilestones or 
demonstrating attainment or maintenance of the NAAQS,for any criteria 
pollutant or its precursors, allocated to highway andtransit vehicle use 
and emissions.
    National ambient air quality standards (NAAQS) are thosestandards 
established pursuant to section 109 of the CAA.
    NEPA means the National Environmental Policy Act of 1969, asamended 
(42 U.S.C. 4321 et seq.).
    NEPA process completion, for the purposes of this subpart,with 
respect to FHWA or FTA, means the point at which there is aspecific 
action to make a determination that a project iscategorically excluded, 
to make a Finding of No Significant Impact, orto issue a record of 
decision on a Final Environmental ImpactStatement under NEPA.
    Nonattainment area means any geographic region of the UnitedStates 
which has been designated as nonattainment under section 107 ofthe CAA 
for any pollutant for which a national ambient air qualitystandard 
exists.
    Project means a highway project or transit project.
    Protective finding means a determination by EPA that asubmitted 
control strategy implementation plan revision containsadopted control 
measures or written commitments to adopt enforceablecontrol measures 
that fully satisfy the emissions reductionsrequirements relevant to the 
statutory provision for which theimplementation plan revision was 
submitted, such as reasonable furtherprogress or attainment.
    Recipient of funds designated under title 23 U.S.C. or theFederal 
Transit Laws means any agency at any level of State,county, city, or 
regional government that routinely receives title 23U.S.C. or Federal 
Transit Laws funds to construct FHWA/FTA projects,operate FHWA/FTA 
projects or equipment, purchase equipment, orundertake other services or 
operations via contracts or agreements.This definition does not include 
private landowners or developers, orcontractors or entities that are 
only paid for services or productscreated by their own employees.
    Regionally significant project means a transportationproject (other 
than an exempt project) that is on a facility whichserves regional 
transportation needs (such as access to and from thearea outside of the 
region, major activity centers in the region,major planned developments 
such as new retail malls, sports complexes,etc., or transportation 
terminals as well as most terminalsthemselves) and would normally be 
included in the modeling of ametropolitan area's transportation network, 
including at a minimum allprincipal arterial highways and all fixed 
guideway transit facilitiesthat offer an alternative to regional highway 
travel.
    Safety margin means the amount by which the total projectedemissions 
from all sources of a given pollutant are less than thetotal emissions 
that would satisfy the applicable requirement forreasonable further 
progress, attainment, or maintenance.
    Standard means a national ambient air quality standard.
    Transit is mass transportation by bus, rail, or otherconveyance 
which provides general or special service to the public ona regular and 
continuing basis. It does not include school buses orcharter or 
sightseeing services.
    Transit project is an undertaking to implement or modify atransit 
facility or transit-related program; purchase

[[Page 556]]

transitvehicles or equipment; or provide financial assistance for 
transitoperations. It does not include actions that are solely within 
thejurisdiction of local transit agencies, such as changes in 
routes,schedules, or fares. It may consist of several phases. For 
analyticalpurposes, it must be defined inclusively enough to:
    (1) Connect logical termini and be of sufficient length to 
addressenvironmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., bea 
reasonable expenditure even if no additional transportationimprovements 
in the area are made; and
    (3) Not restrict consideration of alternatives for otherreasonably 
foreseeable transportation improvements.
    Transportation control measure (TCM) is any measure that 
isspecifically identified and committed to in the 
applicableimplementation plan, including a substitute or additional TCM 
that isincorporated into the applicable SIP through the process 
establishedin CAA section 176(c)(8), that is either one of the types 
listed inCAA section 108, or any other measure for the purpose of 
reducingemissions or concentrations of air pollutants from 
transportationsources by reducing vehicle use or changing traffic flow 
or congestionconditions. Notwithstanding the first sentence of this 
definition,vehicle technology-based, fuel-based, and maintenance-based 
measureswhich control the emissions from vehicles under fixed 
trafficconditions are not TCMs for the purposes of this subpart.
    Transportation improvement program (TIP) means atransportation 
improvement program developed by a metropolitanplanning organization 
under 23 U.S.C. 134(j).
    Transportation plan means the official intermodalmetropolitan 
transportation plan that is developed through themetropolitan planning 
process for the metropolitan planning area,developed pursuant to 23 CFR 
part 450.
    Transportation project is a highway project or a transitproject.
    Written commitment for the purposes of this subpart means awritten 
commitment that includes a description of the action to betaken; a 
schedule for the completion of the action; a demonstrationthat funding 
necessary to implement the action has been authorized bythe 
appropriating or authorizing body; and an acknowledgment that 
thecommitment is an enforceable obligation under the 
applicableimplementation plan.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40072, July1, 2004; 71 
FR 12510, Mar. 10, 2006; 73 FR 4439, Jan. 24, 2008]



Sec. 93.102  Applicability.

    (a) Action applicability. (1) Except as provided for inparagraph (c) 
of this section or Sec. 93.126, conformitydeterminations are required 
for:
    (i) The adoption, acceptance, approval or support oftransportation 
plans and transportation plan amendments developedpursuant to 23 CFR 
part 450 or 49 CFR part 613 by an MPO or DOT;
    (ii) The adoption, acceptance, approval or support of TIPs and 
TIPamendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 
byan MPO or DOT; and
    (iii) The approval, funding, or implementation of FHWA/FTAprojects.
    (2) Conformity determinations are not required under this subpartfor 
individual projects which are not FHWA/FTA projects. However,Sec. 
93.121 applies to such projects if they are regionallysignificant.
    (b) Geographic applicability. The provisions of this subpartshall 
apply in all nonattainment and maintenance areas fortransportation-
related criteria pollutants for which the area isdesignated 
nonattainment or has a maintenance plan.
    (1) The provisions of this subpart apply with respect to emissionsof 
the following criteria pollutants: ozone, carbon monoxide (CO),nitrogen 
dioxide (NO2), particles with an aerodynamicdiameter less 
than or equal to a nominal 10 micrometers(PM10); and 
particles with an aerodynamic diameter lessthan or equal to a nominal 
2.5 micrometers (PM2.5).
    (2) The provisions of this subpart also apply with respect 
toemissions of the following precursor pollutants:
    (i) Volatile organic compounds (VOC) and nitrogen 
oxides(NOX) in ozone areas;
    (ii) NOX in NO2 areas;

[[Page 557]]

    (iii) VOC and/or NOX in PM10 areas ifthe EPA 
Regional Administrator or the director of the State air agencyhas made a 
finding that transportation-related emissions of one orboth of these 
precursors within the nonattainment area are asignificant contributor to 
the PM10 nonattainment problemand has so notified the MPO and 
DOT, or if the applicableimplementation plan (or implementation plan 
submission) establishes anapproved (or adequate) budget for such 
emissions as part of thereasonable further progress, attainment or 
maintenance strategy;
    (iv) NOX in PM2.5 areas, unless both theEPA 
Regional Administrator and the director of the state air agencyhave made 
a finding that transportation-related emissions ofNOX within 
the nonattainment area are not a significantcontributor to the 
PM2.5 nonattainment problem and has sonotified the MPO and 
DOT, or the applicable implementation plan (orimplementation plan 
submission) does not establish an approved (oradequate) budget for such 
emissions as part of the reasonable furtherprogress, attainment or 
maintenance strategy; and
    (v) VOC, sulfur dioxide (SO2) and/or ammonia (NH3)in 
PM2.5 areas either if the EPA Regional Administrator orthe 
director of the state air agency has made a finding thattransportation-
related emissions of any of these precursors within thenonattainment 
area are a significant contributor to thePM2.5 nonattainment 
problem and has so notified the MPOand DOT, or if the applicable 
implementation plan (or implementationplan submission) establishes an 
approved (or adequate) budget for suchemissions as part of the 
reasonable further progress, attainment ormaintenance strategy.
    (3) The provisions of this subpart apply to 
PM2.5nonattainment and maintenance areas with respect to 
PM2.5from re-entrained road dust if the EPA Regional 
Administrator or thedirector of the State air agency has made a finding 
that re-entrainedroad dust emissions within the area are a significant 
contributor tothe PM2.5 nonattainment problem and has so 
notified theMPO and DOT, or if the applicable implementation plan 
(orimplementation plan submission) includes re-entrained road dust in 
theapproved (or adequate) budget as part of the reasonable 
furtherprogress, attainment or maintenance strategy. Re-entrained road 
dustemissions are produced by travel on paved and unpaved roads 
(includingemissions from anti-skid and deicing materials).
    (4) The provisions of this subpart apply to maintenance areasthrough 
the last year of a maintenance area's approved CAA section175A(b) 
maintenance plan, unless the applicable implementation planspecifies 
that the provisions of this subpart shall apply for morethan 20 years.
    (c) Limitations. In order to receive any FHWA/FTA approvalor funding 
actions, including NEPA approvals, for a project phasesubject to this 
subpart, a currently conforming transportation planand TIP must be in 
place at the time of project approval as describedin Sec. 93.114, 
except as provided bySec. 93.114(b).
    (d) Grace period for new nonattainment areas. For areas orportions 
of areas which have been continuously designated attainmentor not 
designated for any NAAQS for ozone, CO, PM10,PM2.5 
or NO2 since 1990 and are subsequentlyredesignated to 
nonattainment or designated nonattainment for anyNAAQS for any of these 
pollutants, the provisions of this subpartshall not apply with respect 
to that NAAQS for 12 months following theeffective date of final 
designation to nonattainment for each NAAQSfor such pollutant.

[62 FR 43801, Aug. 15, 1997, as amended at 65 FR 18918, Apr.10, 2000; 67 
FR 50817, Aug. 6, 2002; 69 FR 40072, July 1, 2004; 70 FR24291, May 6, 
2005; 73 FR 4439, Jan. 24, 2008]



Sec. 93.103  Priority.

    When assisting or approving any action with air quality-
relatedconsequences, FHWA and FTA shall give priority to the 
implementationof those transportation portions of an applicable 
implementation planprepared to attain and maintain the NAAQS. This 
priority shall beconsistent with statutory requirements for allocation 
of funds amongStates or other jurisdictions.

[[Page 558]]



Sec. 93.104  Frequency of conformity determinations.

    (a) Conformity determinations and conformity redeterminations 
fortransportation plans, TIPs, and FHWA/FTA projects must be 
madeaccording to the requirements of this section and the 
applicableimplementation plan.
    (b) Frequency of conformity determinations for transportationplans. 
(1) Each new transportation plan must be demonstrated toconform before 
the transportation plan is approved by the MPO oraccepted by DOT.
    (2) All transportation plan amendments must be found to 
conformbefore the transportation plan amendments are approved by the MPO 
oraccepted by DOT, unless the amendment merely adds or deletes 
exemptprojects listed in Sec. 93.126 or Sec. 93.127. Theconformity 
determination must be based on the transportation plan andthe amendment 
taken as a whole.
    (3) The MPO and DOT must determine the conformity of 
thetransportation plan (including a new regional emissions analysis) 
noless frequently than every four years. If more than four years 
elapseafter DOT's conformity determination without the MPO and 
DOTdetermining conformity of the transportation plan, a 12-month 
graceperiod will be implemented as described in paragraph (f) of 
thissection. At the end of this 12-month grace period, the 
existingconformity determination will lapse.
    (c) Frequency of conformity determinations for 
transportationimprovement programs. (1) A new TIP must be demonstrated 
to conformbefore the TIP is approved by the MPO or accepted by DOT.
    (2) A TIP amendment requires a new conformity determination forthe 
entire TIP before the amendment is approved by the MPO or acceptedby 
DOT, unless the amendment merely adds or deletes exempt projectslisted 
in Sec. 93.126 or Sec. 93.127.
    (3) The MPO and DOT must determine the conformity of the 
TIP(including a new regional emissions analysis) no less frequently 
thanevery four years. If more than four years elapse after 
DOT'sconformity determination without the MPO and DOT 
determiningconformity of the TIP, a 12-month grace period will be 
implemented asdescribed in paragraph (f) of this section. At the end of 
this 12-month grace period, the existing conformity determination will 
lapse.
    (d) Projects. FHWA/FTA projects must be found to conformbefore they 
are adopted, accepted, approved, or funded. Conformitymust be 
redetermined for any FHWA/FTA project if one of the followingoccurs: a 
significant change in the project's design concept andscope; three years 
elapse since the most recent major step to advancethe project; or 
initiation of a supplemental environmental documentfor air quality 
purposes. Major steps include NEPA process completion;start of final 
design; acquisition of a significant portion of theright-of-way; and, 
construction (including Federal approval of plans,specifications and 
estimates).
    (e) Triggers for transportation plan and TIP 
conformitydeterminations. Conformity of existing transportation plans 
andTIPs must be redetermined within two years of the following, or 
aftera 12-month grace period (as described in paragraph (f) of 
thissection) the existing conformity determination will lapse, and no 
newproject-level conformity determinations may be made until 
conformityof the transportation plan and TIP has been determined by the 
MPO andDOT:
    (1) The effective date of EPA's finding that motor vehicleemissions 
budgets from an initially submitted control strategyimplementation plan 
or maintenance plan are adequate pursuant toSec. 93.118(e) and can be 
used for transportation conformitypurposes;
    (2) The effective date of EPA approval of a control 
strategyimplementation plan revision or maintenance plan which 
establishes orrevises a motor vehicle emissions budget if that budget 
has not yetbeen used in a conformity determination prior to approval; 
and
    (3) The effective date of EPA promulgation of an implementationplan 
which establishes or revises a motor vehicle emissions budget.

[[Page 559]]

    (f) Lapse grace period. During the 12-month graceperiod referenced 
in paragraphs (b)(3), (c)(3), and (e) of thissection, a project may be 
found to conform according to therequirements of this part if:
    (1) The project is included in the currently 
conformingtransportation plan and TIP (or regional emissions analysis); 
or
    (2) the project is included in the most recent 
conformingtransportation plan and TIP (or regional emissions analysis).

[62 FR 43801, Aug. 15, 1997, as amended at 67 FR 50817, Aug.6, 2002; 69 
FR 40072, July 1, 2004; 73 FR 4439, Jan. 24, 2008]



Sec. 93.105  Consultation.

    (a) General. The implementation plan revision required underSec. 
51.390 of this chapter shall include procedures forinteragency 
consultation (Federal, State, and local), resolution ofconflicts, and 
public consultation as described in paragraphs (a)through (e) of this 
section. Public consultation procedures will bedeveloped in accordance 
with the requirements for public involvementin 23 CFR part 450.
    (1) The implementation plan revision shall include procedures tobe 
undertaken by MPOs, State departments of transportation, and DOTwith 
State and local air quality agencies and EPA before makingconformity 
determinations, and by State and local air agencies and EPAwith MPOs, 
State departments of transportation, and DOT in developingapplicable 
implementation plans.
    (2) Before EPA approves the conformity implementation planrevision 
required by Sec. 51.390 of this chapter, MPOs andState departments of 
transportation must provide reasonableopportunity for consultation with 
State air agencies, local airquality and transportation agencies, DOT, 
and EPA, includingconsultation on the issues described in paragraph 
(c)(1) of thissection, before making conformity determinations.
    (b) Interagency consultation procedures: General factors.(1) States 
shall provide well-defined consultation procedures in theimplementation 
plan whereby representatives of the MPOs, State andlocal air quality 
planning agencies, State and local transportationagencies, and other 
organizations with responsibilities fordeveloping, submitting, or 
implementing provisions of animplementation plan required by the CAA 
must consult with each otherand with local or regional offices of EPA, 
FHWA, and FTA on thedevelopment of the implementation plan, the 
transportation plan, theTIP, and associated conformity determinations.
    (2) Interagency consultation procedures shall include at a 
minimumthe following general factors and the specific processes in 
paragraph(c) of this section:
    (i) The roles and responsibilities assigned to each agency at 
eachstage in the implementation plan development process and 
thetransportation planning process, including technical meetings;
    (ii) The organizational level of regular consultation;
    (iii) A process for circulating (or providing ready access to)draft 
documents and supporting materials for comment before formaladoption or 
publication;
    (iv) The frequency of, or process for convening, 
consultationmeetings and responsibilities for establishing meeting 
agendas;
    (v) A process for responding to the significant comments ofinvolved 
agencies; and
    (vi) A process for the development of a list of the TCMs which arein 
the applicable implementation plan.
    (c) Interagency consultation procedures: Specific 
processes.Interagency consultation procedures shall also include the 
followingspecific processes:
    (1) A process involving the MPO, State and local air qualityplanning 
agencies, State and local transportation agencies, EPA, andDOT for the 
following:
    (i) Evaluating and choosing a model (or models) and 
associatedmethods and assumptions to be used in hot-spot analyses and 
regionalemissions analyses;
    (ii) Determining which minor arterials and other 
transportationprojects should be considered ``regionally 
significant''for the purposes of regional emissions analysis (in 
addition to those

[[Page 560]]

functionally classified as principal arterial or higher or fixedguideway 
systems or extensions that offer an alternative to regionalhighway 
travel), and which projects should be considered to have asignificant 
change in design concept and scope from the transportationplan or TIP;
    (iii) Evaluating whether projects otherwise exempted from meetingthe 
requirements of this subpart (see Sec. Sec. 93.126 and93.127) should be 
treated as non-exempt in cases where potentialadverse emissions impacts 
may exist for any reason;
    (iv) Making a determination, as required bySec. 93.113(c)(1), 
whether past obstacles to implementationof TCMs which are behind the 
schedule established in the applicableimplementation plan have been 
identified and are being overcome, andwhether State and local agencies 
with influence over approvals orfunding for TCMs are giving maximum 
priority to approval or fundingfor TCMs. This process shall also 
consider whether delays in TCMimplementation necessitate revisions to 
the applicable implementationplan to remove TCMs or substitute TCMs or 
other emission reductionmeasures;
    (v) Notification of transportation plan or TIP amendments 
whichmerely add or delete exempt projects listed in Sec. 93.126or Sec. 
93.127; and
    (vi) Choosing conformity tests and methodologies for isolatedrural 
nonattainment and maintenance areas, as required bySec. 
93.109(l)(2)(iii).
    (2) A process involving the MPO and State and local air 
qualityplanning agencies and transportation agencies for the following:
    (i) Evaluating events which will trigger new 
conformitydeterminations in addition to those triggering events 
established inSec. 93.104; and
    (ii) Consulting on emissions analysis for transportationactivities 
which cross the borders of MPOs or nonattainment areas orair basins.
    (3) Where the metropolitan planning area does not include theentire 
nonattainment or maintenance area, a process involving the MPOand the 
State department of transportation for cooperative planningand analysis 
for purposes of determining conformity of all projectsoutside the 
metropolitan area and within the nonattainment ormaintenance area.
    (4) A process to ensure that plans for construction of 
regionallysignificant projects which are not FHWA/FTA projects 
(includingprojects for which alternative locations, design concept and 
scope, orthe no-build option are still being considered), including 
those byrecipients of funds designated under title 23 U.S.C. or the 
FederalTransit Laws, are disclosed to the MPO on a regular basis, and 
toensure that any changes to those plans are immediately disclosed.
    (5) A process involving the MPO and other recipients of 
fundsdesignated under title 23 U.S.C. or the Federal Transit Laws 
forassuming the location and design concept and scope of projects 
whichare disclosed to the MPO as required by paragraph (c)(4) of 
thissection but whose sponsors have not yet decided these features, 
insufficient detail to perform the regional emissions analysis 
accordingto the requirements of Sec. 93.122.
    (6) A process for consulting on the design, schedule, and fundingof 
research and data collection efforts and regional transportationmodel 
development by the MPO (e.g., household/ travel transportationsurveys).
    (7) A process for providing final documents (including 
applicableimplementation plans and implementation plan revisions) and 
supportinginformation to each agency after approval or adoption. This 
process isapplicable to all agencies described in paragraph (a)(1) of 
thissection, including Federal agencies.
    (d) Resolving conflicts. Conflicts among State agencies orbetween 
State agencies and an MPO shall be escalated to the Governorif they 
cannot be resolved by the heads of the involved agencies. TheState air 
agency has 14 calendar days to appeal to the Governor afterthe State DOT 
or MPO has notified the State air agency head of theresolution of his or 
her comments. The implementation plan revisionrequired by Sec. 51.390 
of this chapter shall define theprocedures for starting the 14-day 
clock. If the State air agencyappeals to the Governor, the final 
conformity determination must havethe concurrence of the Governor. If 
the

[[Page 561]]

State air agency does notappeal to the Governor within 14 days, the MPO 
or State department oftransportation may proceed with the final 
conformity determination.The Governor may delegate his or her role in 
this process, but not tothe head or staff of the State or local air 
agency, State departmentof transportation, State transportation 
commission or board, or anMPO.
    (e) Public consultation procedures. Affected agencies 
makingconformity determinations on transportation plans, programs, 
andprojects shall establish a proactive public involvement process 
whichprovides opportunity for public review and comment by, at a 
minimum,providing reasonable public access to technical and policy 
informationconsidered by the agency at the beginning of the public 
comment periodand prior to taking formal action on a conformity 
determination forall transportation plans and TIPs, consistent with 
these requirementsand those of 23 CFR 450.316(a). Any charges imposed 
for publicinspection and copying should be consistent with the fee 
schedulecontained in 49 CFR 7.43. In addition, these agencies 
mustspecifically address in writing all public comments that known 
plansfor a regionally significant project which is not receiving FHWA 
orFTA funding or approval have not been properly reflected in 
theemissions analysis supporting a proposed conformity finding for 
atransportation plan or TIP. These agencies shall also 
provideopportunity for public involvement in conformity determinations 
forprojects where otherwise required by law.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July1, 2004; 70 
FR 24291, May 6, 2005; 71 FR 12510, Mar. 10, 2006; 73 FR4439, Jan. 24, 
2008]



Sec. 93.106  Content of transportation plans and timeframe of conformitydeterminations.

    (a) Transportation plans adopted after January 1, 1997 inserious, 
severe, or extreme ozone nonattainment areas and in seriousCO 
nonattainment areas. If the metropolitan planning area containsan 
urbanized area population greater than 200,000, the transportationplan 
must specifically describe the transportation system envisionedfor 
certain future years which shall be called horizon years.
    (1) The agency or organization developing the transportation planmay 
choose any years to be horizon years, subject to the 
followingrestrictions:
    (i) Horizon years may be no more than 10 years apart;
    (ii) The first horizon year may be no more than 10 years from 
thebase year used to validate the transportation demand planning model;
    (iii) The attainment year must be a horizon year if it is in 
thetimeframe of the transportation plan and conformity determination;
    (iv) The last year of the transportation plan's forecast periodmust 
be a horizon year; and
    (v) If the timeframe of the conformity determination has 
beenshortened under paragraph (d) of this section, the last year of 
thetimeframe of the conformity determination must be a horizon year.
    (2) For these horizon years:
    (i) The transportation plan shall quantify and document 
thedemographic and employment factors influencing expected 
transportationdemand, including land use forecasts, in accordance 
withimplementation plan provisions and the consultation 
requirementsspecified by Sec. 93.105;
    (ii) The highway and transit system shall be described in terms 
ofthe regionally significant additions or modifications to the 
existingtransportation network which the transportation plan envisions 
to beoperational in the horizon years. Additions and modifications to 
thehighway network shall be sufficiently identified to 
indicateintersections with existing regionally significant facilities, 
and todetermine their effect on route options between 
transportationanalysis zones. Each added or modified highway segment 
shall also besufficiently identified in terms of its design concept and 
designscope to allow modeling of travel times under various traffic 
volumes,consistent with the modeling methods for area-wide 
transportationanalysis in use by the MPO. Transit facilities, equipment, 
andservices envisioned for the future shall be identified in terms 
ofdesign concept, design scope, and operating

[[Page 562]]

policies that aresufficient for modeling of their transit ridership. 
Additions andmodifications to the transportation network shall be 
describedsufficiently to show that there is a reasonable relationship 
betweenexpected land use and the envisioned transportation system; and
    (iii) Other future transportation policies, requirements,services, 
and activities, including intermodal activities, shall bedescribed.
    (b) Two-year grace period for transportation plan requirementsin 
certain ozone and CO areas. The requirements of paragraph (a) ofthis 
section apply to such areas or portions of such areas that 
havepreviously not been required to meet these requirements for 
anyexisting NAAQS two years from the following:
    (1) The effective date of EPA's reclassification of an ozone or 
COnonattainment area that has an urbanized area population greater 
than200,000 to serious or above;
    (2) The official notice by the Census Bureau that determines 
theurbanized area population of a serious or above ozone or 
COnonattainment area to be greater than 200,000; or,
    (3) The effective date of EPA's action that classifies a 
newlydesignated ozone or CO nonattainment area that has an urbanized 
areapopulation greater than 200,000 as serious or above.
    (c) Transportation plans for other areas. Transportationplans for 
other areas must meet the requirements of paragraph (a) ofthis section 
at least to the extent it has been the previous practiceof the MPO to 
prepare plans which meet those requirements. Otherwise,the 
transportation system envisioned for the future must besufficiently 
described within the transportation plans so that aconformity 
determination can be made according to the criteria andprocedures of 
Sec. Sec. 93.109 through 93.119.
    (d) Timeframe of conformity determination. (1) Unless anelection is 
made under paragraph (d)(2) or (d)(3) of this section, thetimeframe of 
the conformity determination must be through the lastyear of the 
transportation plan's forecast period.
    (2) For areas that do not have an adequate or approved CAA 
section175A(b) maintenance plan, the MPO may elect to shorten the 
timeframeof the transportation plan and TIP conformity determination, 
afterconsultation with state and local air quality agencies, 
solicitationof public comments, and consideration of such comments.
    (i) The shortened timeframe of the conformity determination 
mustextend at least to the latest of the following years:
    (A) The tenth year of the transportation plan;
    (B) The latest year for which an adequate or approved motorvehicle 
emissions budget(s) is established in the submitted orapplicable 
implementation plan; or
    (C) The year after the completion date of a regionally 
significantproject if the project is included in the TIP or the project 
requiresapproval before the subsequent conformity determination.
    (ii) The conformity determination must be accompanied by aregional 
emissions analysis (for informational purposes only) for thelast year of 
the transportation plan and for any year shown to exceedmotor vehicle 
emissions budgets in a prior regional emissionsanalysis, if such a year 
extends beyond the timeframe of theconformity determination.
    (3) For areas that have an adequate or approved CAA section175A(b) 
maintenance plan, the MPO may elect to shorten the timeframeof the 
conformity determination to extend through the last year ofsuch 
maintenance plan after consultation with state and local airquality 
agencies, solicitation of public comments, and considerationof such 
comments.
    (4) Any election made by an MPO under paragraphs (d)(2) or (d)(3)of 
this section shall continue in effect until the MPO electsotherwise, 
after consultation with state and local air qualityagencies, 
solicitation of public comments, and consideration of suchcomments.
    (e) Savings. The requirements of this section supplementother 
requirements of applicable law or regulation governing theformat or 
content of transportation plans.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July1, 2004; 73 
FR 4439, Jan. 24, 2008]

[[Page 563]]



Sec. 93.107  Relationship of transportation plan and TIP conformity with theNEPA process.

    The degree of specificity required in the transportation plan andthe 
specific travel network assumed for air quality modeling do notpreclude 
the consideration of alternatives in the NEPA process orother project 
development studies. Should the NEPA process result in aproject with 
design concept and scope significantly different fromthat in the 
transportation plan or TIP, the project must meet thecriteria in 
Sec. Sec. 93.109 through 93.119 for projectsnot from a TIP before NEPA 
process completion.



Sec. 93.108  Fiscal constraints for transportation plans and TIPs.

    Transportation plans and TIPs must be fiscally constrainedconsistent 
with DOT's metropolitan planning regulations at 23 CFR part450 in order 
to be found in conformity.



Sec. 93.109  Criteria and procedures for determining conformity oftransportation plans, programs, and projects: General.

    (a) In order for each transportation plan, program, and FHWA/
FTAproject to be found to conform, the MPO and DOT must demonstrate 
thatthe applicable criteria and procedures in this subpart are 
satisfied,and the MPO and DOT must comply with all applicable 
conformityrequirements of implementation plans and of court orders for 
the areawhich pertain specifically to conformity. The criteria for 
makingconformity determinations differ based on the action under 
review(transportation plans, TIPs, and FHWA/FTA projects), the 
relevantpollutant(s), and the status of the implementation plan.
    (b) Table 1 in this paragraph indicates the criteria andprocedures 
in Sec. Sec. 93.110 through 93.119 which applyfor transportation plans, 
TIPs, and FHWA/FTA projects. Paragraphs (c)through (i) of this section 
explain when the budget, interimemissions, and hot-spot tests are 
required for each pollutant andNAAQS. Paragraph (j) of this section 
addresses conformity requirementsfor areas with approved or adequate 
limited maintenance plans.Paragraph (k) of this section addresses 
nonattainment and maintenanceareas which EPA has determined have 
insignificant motor vehicleemissions. Paragraph (l) of this section 
addresses isolated ruralnonattainment and maintenance areas. Table 1 
follows:

                      Table 1--Conformity Criteria
------------------------------------------------------------------------
 
------------------------------------------------------------------------
All Actions at all times:
  Sec.  93.110                          Latest planning assumptions
  Sec.  93.111                          Latest emissions model
  Sec.  93.112                          Consultation
Transportation Plan:
  Sec.  93.113(b)                       TCMs
  Sec.  93.118 or Sec.  93.119         Emissions budgetand/or Interim
                                          emissions
TIP:
  Sec.  93.113(c)                       TCMs
  Sec.  93.118 or Sec.  93.119         Emissions budgetand/or Interim
                                          emissions
Project (From a Conforming Plan and
 TIP):
  Sec.  93.114                          Currently conforming plan and
                                          TIP
  Sec.  93.115                          Project from a conforming plan
                                          and TIP
  Sec.  93.116                          CO, PM10, and PM2.5hot-spots.
  Sec.  93.117                          PM10 and PM2.5control measures
Project (Not From a Conforming Plan and
 TIP):
  Sec.  93.113(d)                       TCMs
  Sec.  93.114                          Currently conforming plan and
                                          TIP
  Sec.  93.116                          CO, PM10, and PM2.5hot-spots.
  Sec.  93.117                          PM10 and PM2.5control measures
  Sec.  93.118 and/or Sec.  93.119     Emissionsbudget and/or Interim
                                          emissions
------------------------------------------------------------------------

    (c) 1-hour ozone NAAQS nonattainment and maintenance areas.This 
paragraph applies when an area is nonattainment or maintenancefor the 1-
hour ozone NAAQS (i.e., until the effective date ofany revocation of the 
1-hour ozone NAAQS for an area). In addition tothe criteria listed in 
Table 1 in paragraph (b) of this section thatare required to be 
satisfied at all times, in such ozone nonattainmentand maintenance areas 
conformity determinations must include ademonstration that the budget 
and/or interim emissions tests aresatisfied as described in the 
following:
    (1) In all 1-hour ozone nonattainment and maintenance areas 
thebudget test must be satisfied as required by Sec. 93.118 
forconformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy

[[Page 564]]

implementationplan revision or maintenance plan for the 1-hour ozone 
NAAQS isadequate for transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (2) In ozone nonattainment areas that are required to submit 
acontrol strategy implementation plan revision for the 1-hour ozoneNAAQS 
(usually moderate and above areas), the interim emissions testsmust be 
satisfied as required by Sec. 93.119 for conformitydeterminations made 
when there is no approved motor vehicle emissionsbudget from an 
applicable implementation plan for the 1-hour ozoneNAAQS and no adequate 
motor vehicle emissions budget from a submittedcontrol strategy 
implementation plan revision or maintenance plan forthe 1-hour ozone 
NAAQS.
    (3) An ozone nonattainment area must satisfy the interim 
emissionstest for NOX, as required by Sec. 93.119, if 
theimplementation plan or plan submission that is applicable for 
thepurposes of conformity determinations is a 15% plan or Phase 
Iattainment demonstration that does not include a motor vehicleemissions 
budget for NOX. The implementation plan for the1-hour ozone 
NAAQS will be considered to establish a motor vehicleemissions budget 
for NOX if the implementation plan orplan submission contains 
an explicit NOX motor vehicleemissions budget that is 
intended to act as a ceiling on futureNOX emissions, and the 
NOX motor vehicleemissions budget is a net reduction from 
NOX emissionslevels in 1990.
    (4) Ozone nonattainment areas that have not submitted amaintenance 
plan and that are not required to submit a controlstrategy 
implementation plan revision for the 1-hour ozone NAAQS(usually marginal 
and below areas) must satisfy one of the followingrequirements:
    (i) The interim emissions tests required by Sec. 93.119;or
    (ii) The State shall submit to EPA an implementation plan 
revisionfor the 1-hour ozone NAAQS that contains motor vehicle 
emissionsbudget(s) and a reasonable further progress or 
attainmentdemonstration, and the budget test required by Sec. 
93.118must be satisfied using the adequate or approved motor 
vehicleemissions budget(s) (as described in paragraph (c)(1) of 
thissection).
    (5) Notwithstanding paragraphs (c)(1) and (c)(2) of this 
section,moderate and above ozone nonattainment areas with three years of 
cleandata for the 1-hour ozone NAAQS that have not submitted a 
maintenanceplan and that EPA has determined are not subject to the Clean 
Air Actreasonable further progress and attainment demonstration 
requirementsfor the 1-hour ozone NAAQS must satisfy one of the 
followingrequirements:
    (i) The interim emissions tests as required bySec. 93.119;
    (ii) The budget test as required by Sec. 93.118, usingthe adequate 
or approved motor vehicle emissions budgets in thesubmitted or 
applicable control strategy implementation plan for the1-hour ozone 
NAAQS (subject to the timing requirements of paragraph(c)(1) of this 
section); or
    (iii) The budget test as required by Sec. 93.118, usingthe motor 
vehicle emissions of ozone precursors in the most recentyear of clean 
data as motor vehicle emissions budgets, if such budgetsare established 
by the EPA rulemaking that determines that the areahas clean data for 
the 1-hour ozone NAAQS.
    (d) 8-hour ozone NAAQS nonattainment and maintenance areaswithout 
motor vehicle emissions budgets for the 1-hour ozone NAAQS forany 
portion of the 8-hour nonattainment area. This paragraphapplies to areas 
that were never designated nonattainment for the 1-hour ozone NAAQS and 
areas that were designated nonattainment for the1-hour ozone NAAQS but 
that never submitted a control strategy SIP ormaintenance plan with 
approved or adequate motor vehicle emissionsbudgets. This paragraph 
applies 1 year after the effective date ofEPA's nonattainment 
designation for the 8-hour ozone NAAQS for anarea, according to Sec. 
93.102(d). In addition to thecriteria listed in Table 1 in paragraph (b) 
of

[[Page 565]]

this section thatare required to be satisfied at all times, in such 8-
hour ozonenonattainment and maintenance areas conformity determinations 
mustinclude a demonstration that the budget and/or interim emissions 
testsare satisfied as described in the following:
    (1) In such 8-hour ozone nonattainment and maintenance areas 
thebudget test must be satisfied as required by Sec. 93.118 
forconformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan for the 8-hour ozone NAAQS is 
adequatefor transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (2) In ozone nonattainment areas that are required to submit 
acontrol strategy implementation plan revision for the 8-hour ozoneNAAQS 
(usually moderate and above and certain Clean Air Act, part D,subpart 1 
areas), the interim emissions tests must be satisfied asrequired by 
Sec. 93.119 for conformity determinations madewhen there is no approved 
motor vehicle emissions budget from anapplicable implementation plan for 
the 8-hour ozone NAAQS and noadequate motor vehicle emissions budget 
from a submitted controlstrategy implementation plan revision or 
maintenance plan for the 8-hour ozone NAAQS.
    (3) Such an 8-hour ozone nonattainment area must satisfy theinterim 
emissions test for NOX, as required bySec. 93.119, if the 
implementation plan or plan submissionthat is applicable for the 
purposes of conformity determinations is a15% plan or other control 
strategy SIP that addresses reasonablefurther progress that does not 
include a motor vehicle emissionsbudget for NOX. The 
implementation plan for the 8-hourozone NAAQS will be considered to 
establish a motor vehicle emissionsbudget for NOX if the 
implementation plan or plansubmission contains an explicit 
NOX motor vehicleemissions budget that is intended to act as 
a ceiling on futureNOX emissions, and the NOX 
motor vehicleemissions budget is a net reduction from NOX 
emissionslevels in 2002.
    (4) Ozone nonattainment areas that have not submitted amaintenance 
plan and that are not required to submit a controlstrategy 
implementation plan revision for the 8-hour ozone NAAQS(usually marginal 
and certain Clean Air Act, part D, subpart 1 areas)must satisfy one of 
the following requirements:
    (i) The interim emissions tests required by Sec. 93.119;or
    (ii) The State shall submit to EPA an implementation plan 
revisionfor the 8-hour ozone NAAQS that contains motor vehicle 
emissionsbudget(s) and a reasonable further progress or 
attainmentdemonstration, and the budget test required by Sec. 
93.118must be satisfied using the adequate or approved motor 
vehicleemissions budget(s) (as described in paragraph (d)(1) of 
thissection).
    (5) Notwithstanding paragraphs (d)(1) and (d)(2) of this 
section,ozone nonattainment areas with three years of clean data for the 
8-hour ozone NAAQS that have not submitted a maintenance plan and 
thatEPA has determined are not subject to the Clean Air Act 
reasonablefurther progress and attainment demonstration requirements for 
the 8-hour ozone NAAQS must satisfy one of the following requirements:
    (i) The interim emissions tests as required bySec. 93.119;
    (ii) The budget test as required by Sec. 93.118, usingthe adequate 
or approved motor vehicle emissions budgets in thesubmitted or 
applicable control strategy implementation plan for the8-hour ozone 
NAAQS (subject to the timing requirements of paragraph(d)(1) of this 
section); or
    (iii) The budget test as required by Sec. 93.118, usingthe motor 
vehicle emissions of ozone precursors in the most recentyear of clean 
data as motor vehicle emissions budgets, if such budgetsare established 
by the EPA rulemaking that determines that the areahas clean data for 
the 8-hour ozone NAAQS.
    (e) 8-hour ozone NAAQS nonattainment and maintenance areas withmotor 
vehicle

[[Page 566]]

emissions budgets for the 1-hour ozone NAAQS thatcover all or a portion 
of the 8-hour nonattainment area. Thisprovision applies 1 year after the 
effective date of EPA'snonattainment designation for the 8-hour ozone 
NAAQS for an area,according to Sec. 93.102(d). In addition to the 
criterialisted in Table 1 in paragraph (b) of this section that are 
requiredto be satisfied at all times, in such 8-hour ozone nonattainment 
andmaintenance areas conformity determinations must include 
ademonstration that the budget and/or interim emissions tests 
aresatisfied as described in the following:
    (1) In such 8-hour ozone nonattainment and maintenance areas 
thebudget test must be satisfied as required by Sec. 93.118 
forconformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan for the 8-hour ozone NAAQS is 
adequatefor transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (2) Prior to paragraph (e)(1) of this section applying, thefollowing 
test(s) must be satisfied:
    (i) If the 8-hour ozone nonattainment area covers the samegeographic 
area as the 1-hour ozone nonattainment or maintenancearea(s), the budget 
test as required by Sec. 93.118 usingthe approved or adequate motor 
vehicle emissions budgets in the 1-hourozone applicable implementation 
plan or implementation plansubmission;
    (ii) If the 8-hour ozone nonattainment area covers a 
smallergeographic area within the 1-hour ozone nonattainment or 
maintenancearea(s), the budget test as required by Sec. 93.118 
foreither:
    (A) The 8-hour nonattainment area using corresponding portion(s)of 
the approved or adequate motor vehicle emissions budgets in the 1-hour 
ozone applicable implementation plan or implementation plansubmission 
where such portion(s) can reasonably be identified throughthe 
interagency consultation process required bySec. 93.105; or
    (B) The 1-hour nonattainment area using the approved or 
adequatemotor vehicle emissions budgets in the 1-hour ozone 
applicableimplementation plan or implementation plan submission. If 
additionalemissions reductions are necessary to meet the budget test for 
the 8-hour ozone NAAQS in such cases, these emissions reductions must 
comefrom within the 8-hour nonattainment area;
    (iii) If the 8-hour ozone nonattainment area covers a 
largergeographic area and encompasses the entire 1-hour ozone 
nonattainmentor maintenance area(s):
    (A) The budget test as required by Sec. 93.118 for theportion of 
the 8-hour ozone nonattainment area covered by the approvedor adequate 
motor vehicle emissions budgets in the 1-hour ozoneapplicable 
implementation plan or implementation plan submission; and
    (B) The interim emissions tests as required bySec. 93.119 for 
either: the portion of the 8-hour ozonenonattainment area not covered by 
the approved or adequate budgets inthe 1-hour ozone implementation plan, 
the entire 8-hour ozonenonattainment area, or the entire portion of the 
8-hour ozonenonattainment area within an individual state, in the case 
whereseparate 1-hour SIP budgets are established for each state of a 
multi-state 1-hour nonattainment or maintenance area;
    (iv) If the 8-hour ozone nonattainment area partially covers a 1-
hour ozone nonattainment or maintenance area(s):
    (A) The budget test as required by Sec. 93.118 for theportion of 
the 8-hour ozone nonattainment area covered by thecorresponding portion 
of the approved or adequate motor vehicleemissions budgets in the 1-hour 
ozone applicable implementation planor implementation plan submission 
where they can be reasonablyidentified through the interagency 
consultation process required bySec. 93.105; and
    (B) The interim emissions tests as required bySec. 93.119, when 
applicable, for either: the portion of the8-hour ozone nonattainment 
area not covered by the

[[Page 567]]

approved oradequate budgets in the 1-hour ozone implementation plan, the 
entire8-hour ozone nonattainment area, or the entire portion of the 8-
hourozone nonattainment area within an individual state, in the case 
whereseparate 1-hour SIP budgets are established for each state in a 
multi-state 1-hour nonattainment or maintenance area.
    (3) Such an 8-hour ozone nonattainment area must satisfy theinterim 
emissions test for NOX, as required bySec. 93.119, if the 
only implementation plan or plansubmission that is applicable for the 
purposes of conformitydeterminations is a 15% plan or other control 
strategy SIP thataddresses reasonable further progress that does not 
include a motorvehicle emissions budget for NOX. The 
implementation planfor the 8-hour ozone NAAQS will be considered to 
establish a motorvehicle emissions budget for NOX if the 
implementationplan or plan submission contains an explicit 
NOX motorvehicle emissions budget that is intended to act as 
a ceiling onfuture NOX emissions, and the NOX 
motorvehicle emissions budget is a net reduction from 
NOXemissions levels in 2002. Prior to an adequate or 
approvedNOX motor vehicle emissions budget in the 
implementationplan submission for the 8-hour ozone NAAQS, the 
implementation planfor the 1-hour ozone NAAQS will be considered to 
establish a motorvehicle emissions budget for NOX if the 
implementationplan contains an explicit NOX motor vehicle 
emissionsbudget that is intended to act as a ceiling on future 
NOXemissions, and the NOX motor vehicle emissions 
budget is anet reduction from NOX emissions levels in 1990.
    (4) Notwithstanding paragraphs (e)(1) and (e)(2) of this 
section,ozone nonattainment areas with three years of clean data for the 
8-hour ozone NAAQS that have not submitted a maintenance plan and 
thatEPA has determined are not subject to the Clean Air Act 
reasonablefurther progress and attainment demonstration requirements for 
the 8-hour ozone NAAQS must satisfy one of the following requirements:
    (i) The budget test and/or interim emissions tests as required 
bySec. Sec. 93.118 and 93.119 and as described in paragraph(e)(2) of 
this section;
    (ii) The budget test as required by Sec. 93.118, usingthe adequate 
or approved motor vehicle emissions budgets in thesubmitted or 
applicable control strategy implementation plan for the8-hour ozone 
NAAQS (subject to the timing requirements of paragraph(e)(1) of this 
section); or
    (iii) The budget test as required by Sec. 93.118, usingthe motor 
vehicle emissions of ozone precursors in the most recentyear of clean 
data as motor vehicle emissions budgets, if such budgetsare established 
by the EPA rulemaking that determines that the areahas clean data for 
the 8-hour ozone NAAQS.
    (f) CO nonattainment and maintenance areas. In addition tothe 
criteria listed in Table 1 in paragraph (b) of this section thatare 
required to be satisfied at all times, in CO nonattainment 
andmaintenance areas conformity determinations must include 
ademonstration that the hot-spot, budget and/or interim emissions 
testsare satisfied as described in the following:
    (1) FHWA/FTA projects in CO nonattainment or maintenance areasmust 
satisfy the hot spot test required by Sec. 93.116(a) atall times. Until 
a CO attainment demonstration or maintenance plan isapproved by EPA, 
FHWA/FTA projects must also satisfy the hot spot testrequired by Sec. 
93.116(b).
    (2) In CO nonattainment and maintenance areas the budget test mustbe 
satisfied as required by Sec. 93.118 for conformitydeterminations made 
on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan is adequate for transportation 
conformitypurposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (3) Except as provided in paragraph (f)(4) of this section, in 
COnonattainment areas the interim emissions tests must be satisfied 
asrequired by Sec. 93.119

[[Page 568]]

for conformity determinationsmade when there is no approved motor 
vehicle emissions budget from anapplicable implementation plan and no 
adequate motor vehicle emissionsbudget from a submitted control strategy 
implementation plan revisionor maintenance plan.
    (4) CO nonattainment areas that have not submitted a maintenanceplan 
and that are not required to submit an attainment demonstration(e.g., 
moderate CO areas with a design value of 12.7 ppm or less ornot 
classified CO areas) must satisfy one of the followingrequirements:
    (i) The interim emissions tests required by Sec. 93.119;or
    (ii) The State shall submit to EPA an implementation plan 
revisionthat contains motor vehicle emissions budget(s) and an 
attainmentdemonstration, and the budget test required by Sec. 
93.118must be satisfied using the adequate or approved motor 
vehicleemissions budget(s) (as described in paragraph (f)(2) of 
thissection).
    (g) PM10 nonattainment and maintenanceareas. In addition to the 
criteria listed in Table 1 in paragraph(b) of this section that are 
required to be satisfied at all times, inPM10 nonattainment 
and maintenance areas conformitydeterminations must include a 
demonstration that the hot-spot, budgetand/or interim emissions tests 
are satisfied as described in thefollowing:
    (1) FHWA/FTA projects in PM10 nonattainment ormaintenance 
areas must satisfy the hot spot test required bySec. 93.116(a).
    (2) In PM10 nonattainment and maintenance areas thebudget 
test must be satisfied as required by Sec. 93.118 forconformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan is adequate for transportation 
conformitypurposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (3) In PM10 nonattainment areas the interim 
emissionstests must be satisfied as required by Sec. 93.119 
forconformity determinations made:
    (i) If there is no approved motor vehicle emissions budget from 
anapplicable implementation plan and no adequate motor vehicle 
emissionsbudget from a submitted control strategy implementation plan 
revisionor maintenance plan; or
    (ii) If the submitted implementation plan revision is ademonstration 
of impracticability under CAA section 189(a)(1)(B)(ii)and does not 
demonstrate attainment.
    (h) NO2 nonattainment and maintenanceareas. In addition to the 
criteria listed in Table 1 in paragraph(b) of this section that are 
required to be satisfied at all times, inNO2 nonattainment 
and maintenance areas conformitydeterminations must include a 
demonstration that the budget and/orinterim emissions tests are 
satisfied as described in the following:
    (1) In NO2 nonattainment and maintenance areas thebudget 
test must be satisfied as required by Sec. 93.118 forconformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan is adequate for transportation 
conformitypurposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (2) In NO2 nonattainment areas the interim emissionstests 
must be satisfied as required by Sec. 93.119 forconformity 
determinations made when there is no approved motor vehicleemissions 
budget from an applicable implementation plan and noadequate motor 
vehicle emissions budget from a submitted controlstrategy implementation 
plan revision or maintenance plan.
    (i) PM 2.5 nonattainment and maintenanceareas. In addition to the 
criteria listed in Table 1 in paragraph(b) of

[[Page 569]]

this section that are required to be satisfied at alltimes, in 
PM2.5 nonattainment and maintenance areasconformity 
determinations must include a demonstration that the budgetand/or 
interim emissions tests are satisfied as described in thefollowing:
    (1) FHWA/FTA projects in PM2.5 nonattainment 
ormaintenance areas must satisfy the appropriate hot-spot test 
requiredby Sec. 93.116(a).
    (2) In PM2.5 nonattainment and maintenance areas 
thebudget test must be satisfied as required by Sec. 93.118 
forconformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor 
vehicleemissions budget in a submitted control strategy implementation 
planrevision or maintenance plan is adequate for transportation 
conformitypurposes;
    (ii) The publication date of EPA's approval of such a budget inthe 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in 
theFederal Register, if such approval is completed through directfinal 
rulemaking.
    (3) In PM2.5 nonattainment areas the interim 
emissionstests must be satisfied as required by Sec. 93.119 
forconformity determinations made if there is no approved motor 
vehicleemissions budget from an applicable implementation plan and 
noadequate motor vehicle emissions budget from a submitted 
controlstrategy implementation plan revision or maintenance plan.
    (j) Areas with limited maintenance plans. Notwithstandingthe other 
paragraphs of this section, an area is not required tosatisfy the 
regional emissions analysis for Sec. 93.118and/or Sec. 93.119 for a 
given pollutant and NAAQS, if thearea has an adequate or approved 
limited maintenance plan for suchpollutant and NAAQS. A limited 
maintenance plan would have todemonstrate that it would be unreasonable 
to expect that such an areawould experience enough motor vehicle 
emissions growth for a NAAQSviolation to occur. A conformity 
determination that meets otherapplicable criteria in Table 1 of 
paragraph (b) of this section isstill required, including the hot-spot 
requirements for projects inCO, PM10, and PM2.5 
areas.
    (k) Areas with insignificant motor vehicle emissions.Notwithstanding 
the other paragraphs in this section, an area is notrequired to satisfy 
a regional emissions analysis forSec. 93.118 and/or Sec. 93.119 for a 
givenpollutant/precursor and NAAQS, if EPA finds through the adequacy 
orapproval process that a SIP demonstrates that regional motor 
vehicleemissions are an insignificant contributor to the air quality 
problemfor that pollutant/precursor and NAAQS. The SIP would have 
todemonstrate that it would be unreasonable to expect that such an 
areawould experience enough motor vehicle emissions growth in 
thatpollutant/precursor for a NAAQS violation to occur. Such a 
findingwould be based on a number of factors, including the percentage 
ofmotor vehicle emissions in the context of the total SIP inventory, 
thecurrent state of air quality as determined by monitoring data for 
thatNAAQS, the absence of SIP motor vehicle control measures, 
andhistorical trends and future projections of the growth of 
motorvehicle emissions. A conformity determination that meets 
otherapplicable criteria in Table 1 of paragraph (b) of this section 
isstill required, including regional emissions analyses forSec. 93.118 
and/or Sec. 93.119 for otherpollutants/precursors and NAAQS that apply. 
Hot-spot requirements forprojects in CO, PM10, and 
PM2.5 areas inSec. 93.116 must also be satisfied, unless EPA 
determinesthat the SIP also demonstrates that projects will not create 
newlocalized violations and/or increase the severity or number 
ofexisting violations of such NAAQS. If EPA subsequently finds thatmotor 
vehicle emissions of a given pollutant/precursor aresignificant, this 
paragraph would no longer apply for futureconformity determinations for 
that pollutant/precursor and NAAQS.
    (l) Isolated rural nonattainment and maintenance areas. 
Thisparagraph applies to any nonattainment or maintenance area (or 
portionthereof) which does not have a metropolitan transportation plan 
or TIPand whose projects are not part of the emissions analysis of any 
MPO'smetropolitan transportation plan or TIP. This paragraph does not 
applyto ``donut'' areas which

[[Page 570]]

are outside the metropolitanplanning boundary and inside the 
nonattainment/maintenance areaboundary.
    (1) FHWA/FTA projects in all isolated rural nonattainment 
andmaintenance areas must satisfy the requirements ofSec. Sec. 93.110, 
93.111, 93.112, 93.113(d), 93.116, and93.117. Until EPA approves the 
control strategy implementation plan ormaintenance plan for a rural CO 
nonattainment or maintenance area,FHWA/FTA projects must also satisfy 
the requirements ofSec. 93.116(b) (``Localized CO, PM10, 
andPM2.5 violations (hot spots)'').
    (2) Isolated rural nonattainment and maintenance areas are subjectto 
the budget and/or interim emissions tests as described inparagraphs (c) 
through (k) of this section, with the followingmodifications:
    (i) When the requirements of Sec. Sec. 93.106(d),93.116, 93.118, 
and 93.119 apply to isolated rural nonattainment andmaintenance areas, 
references to ``transportation plan''or ``TIP'' should be taken to mean 
those projects in thestatewide transportation plan or statewide TIP 
which are in the ruralnonattainment or maintenance area. When the 
requirements ofSec. 93.106(d) apply to isolated rural nonattainment 
andmaintenance areas, references to ``MPO'' should be takento mean the 
state department of transportation.
    (ii) In isolated rural nonattainment and maintenance areas thatare 
subject to Sec. 93.118, FHWA/FTA projects must beconsistent with motor 
vehicle emissions budget(s) for the years in thetimeframe of the 
attainment demonstration or maintenance plan. Foryears after the 
attainment year (if a maintenance plan has not beensubmitted) or after 
the last year of the maintenance plan, FHWA/FTAprojects must satisfy one 
of the following requirements:
    (A) Sec. 93.118;
    (B) Sec. 93.119 (including regional emissions analysisfor 
NOX in all ozone nonattainment and maintenance 
areas,notwithstanding Sec. 93.119(f)(2)); or
    (C) As demonstrated by the air quality dispersion model or otherair 
quality modeling technique used in the attainment demonstration 
ormaintenance plan, the FHWA/FTA project, in combination with all 
otherregionally significant projects expected in the area in the 
timeframeof the statewide transportation plan, must not cause or 
contribute toany new violation of any standard in any areas; increase 
the frequencyor severity of any existing violation of any standard in 
any area; ordelay timely attainment of any standard or any required 
interimemission reductions or other milestones in any area. Control 
measuresassumed in the analysis must be enforceable.
    (iii) The choice of requirements in paragraph (l)(2)(ii) of 
thissection and the methodology used to meet the requirements of 
paragraph(l)(2)(ii)(C) of this section must be determined through 
theinteragency consultation process required in Sec. 93.105(c)(1)(vii) 
through which the relevant recipients of title 23 U.S.C. orFederal 
Transit Laws funds, the local air quality agency, the Stateair quality 
agency, and the State department of transportation shouldreach consensus 
about the option and methodology selected. EPA and DOTmust be consulted 
through this process as well. In the event ofunresolved disputes, 
conflicts may be escalated to the Governorconsistent with the procedure 
in Sec. 93.105(d), whichapplies for any State air agency comments on a 
conformitydetermination.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40093, July1, 2004; 71 
FR 12510, Mar. 10, 2006; 73 FR 4440, Jan. 24, 2008]



Sec. 93.110  Criteria and procedures: Latest planning assumptions.

    (a) Except as provided in this paragraph, the 
conformitydetermination, with respect to all other applicable criteria 
inSec. Sec. 93.111 through 93.119, must be based upon themost recent 
planning assumptions in force at the time the conformityanalysis begins. 
The conformity determination must satisfy therequirements of paragraphs 
(b) through (f) of this section using theplanning assumptions available 
at the time the conformity analysisbegins as determined through the 
interagency consultation processrequired in Sec. 93.105(c)(1)(i). The 
``time theconformity analysis begins'' for a transportation plan or 
TIPdetermination is the point at which the MPO or other designated 
agencybegins to model the impact of the proposed transportation

[[Page 571]]

plan orTIP on travel and/or emissions. New data that becomes available 
afteran analysis begins is required to be used in the 
conformitydetermination only if a significant delay in the analysis 
hasoccurred, as determined through interagency consultation.
    (b) Assumptions must be derived from the estimates of current 
andfuture population, employment, travel, and congestion most 
recentlydeveloped by the MPO or other agency authorized to make such 
estimatesand approved by the MPO. The conformity determination must also 
bebased on the latest assumptions about current and future 
backgroundconcentrations.
    (c) The conformity determination for each transportation plan andTIP 
must discuss how transit operating policies (including fares andservice 
levels) and assumed transit ridership have changed since theprevious 
conformity determination.
    (d) The conformity determination must include reasonableassumptions 
about transit service and increases in transit fares androad and bridge 
tolls over time.
    (e) The conformity determination must use the latest 
existinginformation regarding the effectiveness of the TCMs and 
otherimplementation plan measures which have already been implemented.
    (f) Key assumptions shall be specified and included in the 
draftdocuments and supporting materials used for the interagency and 
publicconsultation required by Sec. 93.105.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40077, July1, 2004]



Sec. 93.111  Criteria and procedures: Latest emissions model.

    (a) The conformity determination must be based on the latestemission 
estimation model available. This criterion is satisfied ifthe most 
current version of the motor vehicle emissions modelspecified by EPA for 
use in the preparation or revision ofimplementation plans in that State 
or area is used for the conformityanalysis. Where EMFAC is the motor 
vehicle emissions model used inpreparing or revising the applicable 
implementation plan, new versionsmust be approved by EPA before they are 
used in the conformityanalysis.
    (b) EPA will consult with DOT to establish a grace periodfollowing 
the specification of any new model.
    (1) The grace period will be no less than three months and no 
morethan 24 months after notice of availability is published in 
theFederal Register.
    (2) The length of the grace period will depend on the degree 
ofchange in the model and the scope of re-planning likely to benecessary 
by MPOs in order to assure conformity. If the grace periodwill be longer 
than three months, EPA will announce the appropriategrace period in the 
Federal Register.
    (c) Transportation plan and TIP conformity analyses for which 
theemissions analysis was begun during the grace period or before 
theFederal Register notice of availability of the latest emissionmodel 
may continue to use the previous version of the model.Conformity 
determinations for projects may also be based on theprevious model if 
the analysis was begun during the grace period orbefore the Federal 
Register notice of availability, and if thefinal environmental document 
for the project is issued no more thanthree years after the issuance of 
the draft environmental document.



Sec. 93.112  Criteria and procedures: Consultation.

    Conformity must be determined according to the 
consultationprocedures in this subpart and in the applicable 
implementation plan,and according to the public involvement procedures 
established incompliance with 23 CFR part 450. Until the implementation 
planrevision required by Sec. 51.390 of this chapter is fullyapproved 
by EPA, the conformity determination must be made accordingto Sec. 
93.105 (a)(2) and (e) and the requirements of 23 CFRpart 450.



Sec. 93.113  Criteria and procedures: Timely implementation of TCMs.

    (a) The transportation plan, TIP, or any FHWA/FTA project which 
isnot from a conforming plan and TIP must provide for the 
timelyimplementation of TCMs from the applicable implementation plan.

[[Page 572]]

    (b) For transportation plans, this criterion is satisfied ifthe 
following two conditions are met:
    (1) The transportation plan, in describing the envisioned 
futuretransportation system, provides for the timely completion 
orimplementation of all TCMs in the applicable implementation plan 
whichare eligible for funding under title 23 U.S.C. or the Federal 
TransitLaws, consistent with schedules included in the 
applicableimplementation plan.
    (2) Nothing in the transportation plan interferes with 
theimplementation of any TCM in the applicable implementation plan.
    (c) For TIPs, this criterion is satisfied if the followingconditions 
are met:
    (1) An examination of the specific steps and funding source(s)needed 
to fully implement each TCM indicates that TCMs which areeligible for 
funding under title 23 U.S.C. or the Federal Transit Lawsare on or ahead 
of the schedule established in the applicableimplementation plan, or, if 
such TCMs are behind the scheduleestablished in the applicable 
implementation plan, the MPO and DOThave determined that past obstacles 
to implementation of the TCMs havebeen identified and have been or are 
being overcome, and that allState and local agencies with influence over 
approvals or funding forTCMs are giving maximum priority to approval or 
funding of TCMs overother projects within their control, including 
projects in locationsoutside the nonattainment or maintenance area.
    (2) If TCMs in the applicable implementation plan have 
previouslybeen programmed for Federal funding but the funds have not 
beenobligated and the TCMs are behind the schedule in the 
implementationplan, then the TIP cannot be found to conform if the funds 
intendedfor those TCMs are reallocated to projects in the TIP other than 
TCMs,or if there are no other TCMs in the TIP, if the funds are 
reallocatedto projects in the TIP other than projects which are eligible 
forFederal funding intended for air quality improvement projects, 
e.g.,the Congestion Mitigation and Air Quality Improvement Program.
    (3) Nothing in the TIP may interfere with the implementation ofany 
TCM in the applicable implementation plan.
    (d) For FHWA/FTA projects which are not from a 
conformingtransportation plan and TIP, this criterion is satisfied if 
theproject does not interfere with the implementation of any TCM in 
theapplicable implementation plan.



Sec. 93.114  Criteria and procedures: Currently conforming transportation planand TIP.

    There must be a currently conforming transportation plan 
andcurrently conforming TIP at the time of project approval, or a 
projectmust meet the requirements in Sec. 93.104(f) during the 12-month 
lapse grace period.
    (a) Only one conforming transportation plan or TIP may exist in 
anarea at any time; conformity determinations of a 
previoustransportation plan or TIP expire once the current plan or TIP 
isfound to conform by DOT. The conformity determination on 
atransportation plan or TIP will also lapse if conformity is 
notdetermined according to the frequency requirements specified inSec. 
93.104.
    (b) This criterion is not required to be satisfied at the time 
ofproject approval for a TCM specifically included in the 
applicableimplementation plan, provided that all other relevant criteria 
of thissubpart are satisfied.

[62 FR 43801, Aug. 15, 1997, as amended at 73 FR 4440, Jan.24, 2008]



Sec. 93.115  Criteria and procedures: Projects from a transportation plan andTIP.

    (a) The project must come from a conforming plan and program. Ifthis 
criterion is not satisfied, the project must satisfy all criteriain 
Table 1 of Sec. 93.109(b) for a project not from aconforming 
transportation plan and TIP. A project is considered to befrom a 
conforming transportation plan if it meets the requirements ofparagraph 
(b) of this section and from a conforming program if itmeets the 
requirements of paragraph (c) of this section. Specialprovisions for 
TCMs in an applicable implementation plan are providedin paragraph (d) 
of this section.

[[Page 573]]

    (b) A project is considered to be from a conformingtransportation 
plan if one of the following conditions applies:
    (1) For projects which are required to be identified in 
thetransportation plan in order to satisfy Sec. 93.106(``Content of 
transportation plans''), the project isspecifically included in the 
conforming transportation plan and theproject's design concept and scope 
have not changed significantly fromthose which were described in the 
transportation plan, or in a mannerwhich would significantly impact use 
of the facility; or
    (2) For projects which are not required to be specificallyidentified 
in the transportation plan, the project is identified inthe conforming 
transportation plan, or is consistent with the policiesand purpose of 
the transportation plan and will not interfere withother projects 
specifically included in the transportation plan.
    (c) A project is considered to be from a conforming program if 
thefollowing conditions are met:
    (1) The project is included in the conforming TIP and the 
designconcept and scope of the project were adequate at the time of the 
TIPconformity determination to determine its contribution to the 
TIP'sregional emissions, and the project design concept and scope have 
notchanged significantly from those which were described in the TIP; and
    (2) If the TIP describes a project design concept and scope 
whichincludes project-level emissions mitigation or control 
measures,written commitments to implement such measures must be obtained 
fromthe project sponsor and/or operator as required bySec. 93.125(a) in 
order for the project to be consideredfrom a conforming program. Any 
change in these mitigation or controlmeasures that would significantly 
reduce their effectivenessconstitutes a change in the design concept and 
scope of the project.
    (d) TCMs. This criterion is not required to be satisfied forTCMs 
specifically included in an applicable implementation plan.
    (e) Notwithstanding the requirements of paragraphs (a), (b), and(c) 
of this section, a project must meet the requirements ofSec. 93.104(f) 
during the 12-month lapse grace period.

[62 FR 43801, Aug. 15, 1997, as amended at 73 FR 4440, Jan.24, 2008]



Sec. 93.116  Criteria and procedures: Localized CO, PM[bdi1][bdi0], andPM[bdi2].[bdi5] violations (hot-spots).

    (a) This paragraph applies at all times. The FHWA/FTA project 
mustnot cause or contribute to any new localized CO, 
PM10,and/or PM2.5 violations or increase the 
frequency orseverity of any existing CO, PM10, and/
orPM2.5 violations in CO, PM10, 
andPM2.5 nonattainment and maintenance areas. This 
criterionis satisfied without a hot-spot analysis in PM10 
andPM2.5 nonattainment and maintenance areas for FHWA/
FTAprojects that are not identified in Sec. 93.123(b)(1). Thiscriterion 
is satisfied for all other FHWA/FTA projects in CO,PM10 and 
PM2.5 nonattainment and maintenanceareas if it is 
demonstrated that during the time frame of thetransportation plan no new 
local violations will be created and theseverity or number of existing 
violations will not be increased as aresult of the project. The 
demonstration must be performed accordingto the consultation 
requirements of Sec. 93.105(c)(1)(i) andthe methodology requirements of 
Sec. 93.123.
    (b) This paragraph applies for CO nonattainment areas as describedin 
Sec. 93.109(f)(1). Each FHWA/FTA project must eliminateor reduce the 
severity and number of localized CO violations in thearea substantially 
affected by the project (in CO nonattainmentareas). This criterion is 
satisfied with respect to existing localizedCO violations if it is 
demonstrated that during the time frame of thetransportation plan (or 
regional emissions analysis) existinglocalized CO violations will be 
eliminated or reduced in severity andnumber as a result of the project. 
The demonstration must be performedaccording to the consultation 
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements 
of Sec. 93.123.

[69 FR 40077, July 1, 2004, as amended at 71 FR 12510, Mar.10, 2006; 73 
FR 4440, Jan. 24, 2008]

[[Page 574]]



Sec. 93.117  Criteria and procedures: Compliance with PM[bdi1][bdi0] andPM[bdi2].[bdi5] control measures.

    The FHWA/FTA project must comply with any PM10 
andPM2.5 control measures in the applicable 
implementationplan. This criterion is satisfied if the project-level 
conformitydetermination contains a written commitment from the project 
sponsorto include in the final plans, specifications, and estimates for 
theproject those control measures (for the purpose of 
limitingPM10 and PM2.5 emissions from the 
constructionactivities and/or normal use and operation associated with 
theproject) that are contained in the applicable implementation plan.

[69 FR 40078, July 1, 2004]



Sec. 93.118  Criteria and procedures: Motor vehicle emissions budget.

    (a) The transportation plan, TIP, and project not from aconforming 
transportation plan and TIP must be consistent with themotor vehicle 
emissions budget(s) in the applicable implementationplan (or 
implementation plan submission). This criterion applies asdescribed in 
Sec. 93.109(c) through (l). This criterion issatisfied if it is 
demonstrated that emissions of the pollutants orpollutant precursors 
described in paragraph (c) of this section areless than or equal to the 
motor vehicle emissions budget(s)established in the applicable 
implementation plan or implementationplan submission.
    (b) Consistency with the motor vehicle emissions budget(s) must 
bedemonstrated for each year for which the applicable (and/or 
submitted)implementation plan specifically establishes motor vehicle 
emissionsbudget(s), for the attainment year (if it is within the 
timeframe ofthe transportation plan and conformity determination), for 
the lastyear of the timeframe of the conformity determination (as 
describedunder Sec. 93.106(d)), and for any intermediate years 
withinthe timeframe of the conformity determination as necessary so that 
theyears for which consistency is demonstrated are no more than ten 
yearsapart, as follows:
    (1) Until a maintenance plan is submitted:
    (i) Emissions in each year (such as milestone years and 
theattainment year) for which the control strategy implementation 
planrevision establishes motor vehicle emissions budget(s) must be 
lessthan or equal to that year's motor vehicle emissions budget(s); and
    (ii) Emissions in years for which no motor vehicle 
emissionsbudget(s) are specifically established must be less than or 
equal tothe motor vehicle emissions budget(s) established for the most 
recentprior year. For example, emissions in years after the attainment 
yearfor which the implementation plan does not establish a budget must 
beless than or equal to the motor vehicle emissions budget(s) for 
theattainment year.
    (2) When a maintenance plan has been submitted:
    (i) Emissions must be less than or equal to the motor 
vehicleemissions budget(s) established for the last year of the 
maintenanceplan, and for any other years for which the maintenance 
planestablishes motor vehicle emissions budgets. If the maintenance 
plandoes not establish motor vehicle emissions budgets for any years 
otherthan the last year of the maintenance plan, the demonstration 
ofconsistency with the motor vehicle emissions budget(s) must 
beaccompanied by a qualitative finding that there are no factors 
whichwould cause or contribute to a new violation or exacerbate an 
existingviolation in the years before the last year of the maintenance 
plan.The interagency consultation process required by Sec. 93.105shall 
determine what must be considered in order to make such afinding;
    (ii) For years after the last year of the maintenance plan,emissions 
must be less than or equal to the maintenance plan's motorvehicle 
emissions budget(s) for the last year of the maintenance plan;
    (iii) If an approved and/or submitted control strategyimplementation 
plan has established motor vehicle emissions budgetsfor years in the 
time frame of the transportation plan, emissions inthese years must be 
less than or equal to the control strategyimplementation plan's motor 
vehicle emissions budget(s) for theseyears; and
    (iv) For any analysis years before the last year of themaintenance 
plan,

[[Page 575]]

emissions must be less than or equal to themotor vehicle emissions 
budget(s) established for the most recentprior year.
    (c) Consistency with the motor vehicle emissions budget(s) must 
bedemonstrated for each pollutant or pollutant precursor inSec. 
93.102(b) for which the area is in nonattainment ormaintenance and for 
which the applicable implementation plan (orimplementation plan 
submission) establishes a motor vehicle emissionsbudget.
    (d) Consistency with the motor vehicle emissions budget(s) must 
bedemonstrated by including emissions from the entire 
transportationsystem, including all regionally significant projects 
contained in thetransportation plan and all other regionally significant 
highway andtransit projects expected in the nonattainment or maintenance 
area inthe timeframe of the transportation plan.
    (1) Consistency with the motor vehicle emissions budget(s) must 
bedemonstrated with a regional emissions analysis that meets 
therequirements of Sec. Sec. 93.122 and 93.105(c)(1)(i).
    (2) The regional emissions analysis may be performed for any yearsin 
the timeframe of the conformity determination (as described underSec. 
93.106(d)) provided they are not more than ten yearsapart and provided 
the analysis is performed for the attainment year(if it is in the 
timeframe of the transportation plan and conformitydetermination) and 
the last year of the timeframe of the conformitydetermination. Emissions 
in years for which consistency with motorvehicle emissions budgets must 
be demonstrated, as required inparagraph (b) of this section, may be 
determined by interpolatingbetween the years for which the regional 
emissions analysis isperformed.
    (3) When the timeframe of the conformity determination isshortened 
under Sec. 93.106(d)(2), the conformitydetermination must be 
accompanied by a regional emissions analysis(for informational purposes 
only) for the last year of thetransportation plan, and for any year 
shown to exceed motor vehicleemissions budgets in a prior regional 
emissions analysis (if such ayear extends beyond the timeframe of the 
conformity determination).
    (e) Motor vehicle emissions budgets in submitted controlstrategy 
implementation plan revisions and submitted maintenanceplans. (1) 
Consistency with the motor vehicle emissions budgets insubmitted control 
strategy implementation plan revisions ormaintenance plans must be 
demonstrated if EPA has declared the motorvehicle emissions budget(s) 
adequate for transportation conformitypurposes, and the adequacy finding 
is effective. However, motorvehicle emissions budgets in submitted 
implementation plans do notsupersede the motor vehicle emissions budgets 
in approvedimplementation plans for the same Clean Air Act requirement 
and theperiod of years addressed by the previously approved 
implementationplan, unless EPA specifies otherwise in its approval of a 
SIP.
    (2) If EPA has not declared an implementation plan submission'smotor 
vehicle emissions budget(s) adequate for transportationconformity 
purposes, the budget(s) shall not be used to satisfy therequirements of 
this section. Consistency with the previouslyestablished motor vehicle 
emissions budget(s) must be demonstrated. Ifthere are no previously 
approved implementation plans orimplementation plan submissions with 
adequate motor vehicle emissionsbudgets, the interim emissions tests 
required by Sec. 93.119must be satisfied.
    (3) If EPA declares an implementation plan submission's motorvehicle 
emissions budget(s) inadequate for transportation conformitypurposes 
after EPA had previously found the budget(s) adequate, andconformity of 
a transportation plan or TIP has already been determinedby DOT using the 
budget(s), the conformity determination will remainvalid. Projects 
included in that transportation plan or TIP couldstill satisfy 
Sec. Sec. 93.114 and 93.115, which require acurrently conforming 
transportation plan and TIP to be in place at thetime of a project's 
conformity determination and that projects comefrom a conforming 
transportation plan and TIP.

[[Page 576]]

    (4) EPA will not find a motor vehicle emissions budget in asubmitted 
control strategy implementation plan revision or maintenanceplan to be 
adequate for transportation conformity purposes unless thefollowing 
minimum criteria are satisfied:
    (i) The submitted control strategy implementation plan revision 
ormaintenance plan was endorsed by the Governor (or his or her 
designee)and was subject to a State public hearing;
    (ii) Before the control strategy implementation plan ormaintenance 
plan was submitted to EPA, consultation among federal,State, and local 
agencies occurred; full implementation plandocumentation was provided to 
EPA; and EPA's stated concerns, if any,were addressed;
    (iii) The motor vehicle emissions budget(s) is clearly identifiedand 
precisely quantified;
    (iv) The motor vehicle emissions budget(s), when consideredtogether 
with all other emissions sources, is consistent withapplicable 
requirements for reasonable further progress, attainment,or maintenance 
(whichever is relevant to the given implementation plansubmission);
    (v) The motor vehicle emissions budget(s) is consistent with 
andclearly related to the emissions inventory and the control measures 
inthe submitted control strategy implementation plan revision 
ormaintenance plan; and
    (vi) Revisions to previously submitted control 
strategyimplementation plans or maintenance plans explain and document 
anychanges to previously submitted budgets and control measures; 
impactson point and area source emissions; any changes to established 
safetymargins (see Sec. 93.101 for definition); and reasons forthe 
changes (including the basis for any changes related to emissionfactors 
or estimates of vehicle miles traveled).
    (5) Before determining the adequacy of a submitted motor 
vehicleemissions budget, EPA will review the State's compilation of 
publiccomments and response to comments that are required to be 
submittedwith any implementation plan. EPA will document its 
consideration ofsuch comments and responses in a letter to the State 
indicating theadequacy of the submitted motor vehicle emissions budget.
    (6) When the motor vehicle emissions budget(s) used to satisfy 
therequirements of this section are established by an implementation 
plansubmittal that has not yet been approved or disapproved by EPA, 
theMPO and DOT's conformity determinations will be deemed to be 
astatement that the MPO and DOT are not aware of any information 
thatwould indicate that emissions consistent with the motor 
vehicleemissions budget will cause or contribute to any new violation of 
anystandard; increase the frequency or severity of any existing 
violationof any standard; or delay timely attainment of any standard or 
anyrequired interim emission reductions or other milestones.
    (f) Adequacy review process for implementation plansubmissions. EPA 
will use the procedure listed in paragraph (f)(1)or (f)(2) of this 
section to review the adequacy of an implementationplan submission:
    (1) When EPA reviews the adequacy of an implementation 
plansubmission prior to EPA's final action on the implementation plan,
    (i) EPA will notify the public through EPA's website when 
EPAreceives an implementation plan submission that will be reviewed 
foradequacy.
    (ii) The public will have a minimum of 30 days to comment on 
theadequacy of the implementation plan submission. If the 
completeimplementation plan is not accessible electronically through 
theinternet and a copy is requested within 15 days of the date of 
thewebsite notice, the comment period will be extended for 30 days 
fromthe date that a copy of the implementation plan is mailed.
    (iii) After the public comment period closes, EPA will inform 
theState in writing whether EPA has found the submission adequate 
orinadequate for use in transportation conformity, including response 
toany comments submitted directly and review of comments 
submittedthrough the State process, or EPA will include the 
determination ofadequacy or inadequacy in a proposed or final action 
approving ordisapproving the implementation plan

[[Page 577]]

under paragraph (f)(2)(iii)of this section.
    (iv) EPA will publish a Federal Register notice to informthe public 
of EPA's finding. If EPA finds the submission adequate, theeffective 
date of this finding will be 15 days from the date thenotice is 
published as established in the Federal Registernotice, unless EPA is 
taking a final approval action on the SIP asdescribed in paragraph 
(f)(2)(iii) of this section.
    (v) EPA will announce whether the implementation plan submissionis 
adequate or inadequate for use in transportation conformity onEPA's 
website. The website will also include EPA's response tocomments if any 
comments were received during the public commentperiod.
    (vi) If after EPA has found a submission adequate, EPA has causeto 
reconsider this finding, EPA will repeat actions described inparagraphs 
(f)(1)(i) through (v) or (f)(2) of this section unless EPAdetermines 
that there is no need for additional public comment giventhe 
deficiencies of the implementation plan submission. In all caseswhere 
EPA reverses its previous finding to a finding of inadequacyunder 
paragraph (f)(1) of this section, such a finding will becomeeffective 
immediately upon the date of EPA's letter to the State.
    (vii) If after EPA has found a submission inadequate, EPA hascause 
to reconsider the adequacy of that budget, EPA will repeatactions 
described in paragraphs (f)(1)(i) through (v) or (f)(2) ofthis section.
    (2) When EPA reviews the adequacy of an implementation 
plansubmission simultaneously with EPA's approval or disapproval of 
theimplementation plan,
    (i) EPA's Federal Register notice of proposed or directfinal 
rulemaking will serve to notify the public that EPA will bereviewing the 
implementation plan submission for adequacy.
    (ii) The publication of the notice of proposed rulemaking willstart 
a public comment period of at least 30 days.
    (iii) EPA will indicate whether the implementation plan submissionis 
adequate and thus can be used for conformity either in EPA's 
finalrulemaking or through the process described in paragraphs 
(f)(1)(iii)through (v) of this section. If EPA makes an adequacy finding 
througha final rulemaking that approves the implementation plan 
submission,such a finding will become effective upon the publication 
date ofEPA's approval in the Federal Register, or upon the effectivedate 
of EPA's approval if such action is conducted through directfinal 
rulemaking. EPA will respond to comments received directly andreview 
comments submitted through the State process and include theresponse to 
comments in the applicable docket.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40078, July1, 2004; 73 
FR 4440, Jan. 24, 2008]



Sec. 93.119  Criteria and procedures: Interim emissions in areas without motorvehicle emissions budgets.

    (a) The transportation plan, TIP, and project not from aconforming 
transportation plan and TIP must satisfy the interimemissions test(s) as 
described in Sec. 93.109(c) through(l). This criterion applies to the 
net effect of the action(transportation plan, TIP, or project not from a 
conforming plan andTIP) on motor vehicle emissions from the entire 
transportation system.
    (b) Ozone areas. The requirements of this paragraph apply toall 1-
hour ozone and 8-hour ozone NAAQS areas, except for certainrequirements 
as indicated. This criterion may be met:
    (1) In moderate and above ozone nonattainment areas that aresubject 
to the reasonable further progress requirements of CAA section182(b)(1) 
if a regional emissions analysis that satisfies therequirements of Sec. 
93.122 and paragraphs (g) through (j)of this section demonstrates that 
for each analysis year and for eachof the pollutants described in 
paragraph (f) of this section:
    (i) The emissions predicted in the ``Action'' scenarioare less than 
the emissions predicted in the ``Baseline''scenario, and this can be 
reasonably expected to be true in theperiods between the analysis years; 
and
    (ii) The emissions predicted in the ``Action''scenario are lower 
than:
    (A) 1990 emissions by any nonzero amount, in areas for the 1-
hourozone NAAQS as described in Sec. 93.109(c); or

[[Page 578]]

    (B) 2002 emissions by any nonzero amount, in areas for the 8-hour 
ozone NAAQS as described in Sec. 93.109(d) and (e).
    (2) In marginal and below ozone nonattainment areas and otherozone 
nonattainment areas that are not subject to the reasonablefurther 
progress requirements of CAA section 182(b)(1) if a regionalemissions 
analysis that satisfies the requirements ofSec. 93.122 and paragraphs 
(g) through (j) of this sectiondemonstrates that for each analysis year 
and for each of thepollutants described in paragraph (f) of this 
section:
    (i) The emissions predicted in the ``Action'' scenarioare not 
greater than the emissions predicted in the``Baseline'' scenario, and 
this can be reasonably expectedto be true in the periods between the 
analysis years; or
    (ii) The emissions predicted in the ``Action''scenario are not 
greater than:
    (A) 1990 emissions, in areas for the 1-hour ozone NAAQS asdescribed 
in Sec. 93.109(c); or
    (B) 2002 emissions, in areas for the 8-hour ozone NAAQS asdescribed 
in Sec. 93.109(d) and (e).
    (c) CO areas. This criterion may be met:
    (1) In moderate areas with design value greater than 12.7 ppm 
andserious CO nonattainment areas that are subject to CAA section 
187(a)(7) if a regional emissions analysis that satisfies the 
requirementsof Sec. 93.122 and paragraphs (g) through (j) of 
thissection demonstrates that for each analysis year and for each of 
thepollutants described in paragraph (f) of this section:
    (i) The emissions predicted in the ``Action'' scenarioare less than 
the emissions predicted in the ``Baseline''scenario, and this can be 
reasonably expected to be true in theperiods between the analysis years; 
and
    (ii) The emissions predicted in the ``Action''scenario are lower 
than 1990 emissions by any nonzero amount.
    (2) In moderate areas with design value less than 12.7 ppm and 
notclassified CO nonattainment areas if a regional emissions 
analysisthat satisfies the requirements of Sec. 93.122 andparagraphs 
(g) through (j) of this section demonstrates that for eachanalysis year 
and for each of the pollutants described in paragraph(f) of this 
section:
    (i) The emissions predicted in the ``Action'' scenarioare not 
greater than the emissions predicted in the``Baseline'' scenario, and 
this can be reasonably expectedto be true in the periods between the 
analysis years; or
    (ii) The emissions predicted in the ``Action''scenario are not 
greater than 1990 emissions.
    (d) PM10 and NO2 areas.This criterion may be met in PM10 
and NO2nonattainment areas if a regional emissions analysis 
that satisfiesthe requirements of Sec. 93.122 and paragraphs (g) 
through(j) of this section demonstrates that for each analysis year and 
foreach of the pollutants described in paragraph (f) of this section, 
oneof the following requirements is met:
    (1) The emissions predicted in the ``Action'' scenarioare not 
greater than the emissions predicted in the``Baseline'' scenario, and 
this can be reasonably expectedto be true in the periods between the 
analysis years; or
    (2) The emissions predicted in the ``Action'' scenarioare not 
greater than baseline emissions. Baseline emissions are thoseestimated 
to have occurred during calendar year 1990, unless theconformity 
implementation plan revision required bySec. 51.390 of this chapter 
defines the baseline emissionsfor a PM10 area to be those 
occurring in a differentcalendar year for which a baseline emissions 
inventory was developedfor the purpose of developing a control strategy 
implementation plan.
    (e) PM2.5 areas. This criterion may be metin PM2.5 
nonattainment areas if a regional emissionsanalysis that satisfies the 
requirements of Sec. 93.122 andparagraphs (g) through (j) of this 
section demonstrates that for eachanalysis year and for each of the 
pollutants described in paragraph(f) of this section, one of the 
following requirements is met:
    (1) The emissions predicted in the ``Action'' scenarioare not 
greater than the emissions predicted in the``Baseline'' scenario, and 
this can be reasonably expectedto be true in the periods between the 
analysis years; or
    (2) The emissions predicted in the ``Action'' scenarioare not 
greater than 2002 emissions.

[[Page 579]]

    (f) Pollutants. The regional emissions analysis must beperformed for 
the following pollutants:
    (1) VOC in ozone areas;
    (2) NOX in ozone areas, unless the EPA 
Administratordetermines that additional reductions of NOX 
would notcontribute to attainment;
    (3) CO in CO areas;
    (4) PM10 in PM10 areas;
    (5) VOC and/or NOX in PM10 areas if theEPA 
Regional Administrator or the director of the State air agency hasmade a 
finding that one or both of such precursor emissions fromwithin the area 
are a significant contributor to the PM10nonattainment 
problem and has so notified the MPO and DOT;
    (6) NOX in NO2 areas;
    (7) PM2.5 in PM2.5 areas;
    (8) Reentrained road dust in PM2.5 areas only if theEPA 
Regional Administrator or the director of the State air agency hasmade a 
finding that emissions from reentrained road dust within thearea are a 
significant contributor to the PM2.5nonattainment problem and 
has so notified the MPO and DOT;
    (9) NOX in PM2.5 areas, unless the EPARegional 
Administrator and the director of the State air agency havemade a 
finding that emissions of NOX from within the areaare not a 
significant contributor to the PM2.5nonattainment problem and 
has so notified the MPO and DOT; and
    (10) VOC, SO2 and/or ammonia in PM2.5areas if 
the EPA Regional Administrator or the director of the Stateair agency 
has made a finding that any of such precursor emissionsfrom within the 
area are a significant contributor to thePM2.5 nonattainment 
problem and has so notified the MPOand DOT.
    (g) Analysis years. (1) The regional emissions analysis mustbe 
performed for analysis years that are no more than ten years apart.The 
first analysis year must be no more than five years beyond theyear in 
which the conformity determination is being made. The lastyear of the 
timeframe of the conformity determination (as describedunder Sec. 
93.106(d)) must also be an analysis year.
    (2) For areas using paragraphs (b)(2)(i), (c)(2)(i), (d)(1), 
and(e)(1) of this section, a regional emissions analysis that 
satisfiesthe requirements of Sec. 93.122 and paragraphs (g) through(j) 
of this section would not be required for analysis years in whichthe 
transportation projects and planning assumptions in the``Action'' and 
``Baseline'' scenarios areexactly the same. In such a case, paragraph 
(a) of this section can besatisfied by documenting that the 
transportation projects and planningassumptions in both scenarios are 
exactly the same, and consequently,the emissions predicted in the 
``Action'' scenario are notgreater than the emissions predicted in the 
``Baseline''scenario for such analysis years.
    (3) When the timeframe of the conformity determination isshortened 
under Sec. 93.106(d)(2), the conformitydetermination must be 
accompanied by a regional emissions analysis(for informational purposes 
only) for the last year of thetransportation plan.
    (h) ``Baseline'' scenario. The regionalemissions analysis required 
by paragraphs (b) through (e) of thissection must estimate the emissions 
that would result from the``Baseline'' scenario in each analysis year. 
The``Baseline'' scenario must be defined for each of theanalysis years. 
The ``Baseline'' scenario is the futuretransportation system that will 
result from current programs,including the following (except that exempt 
projects listed inSec. 93.126 and projects exempt from regional 
emissionsanalysis as listed in Sec. 93.127 need not be 
explicitlyconsidered):
    (1) All in-place regionally significant highway and 
transitfacilities, services and activities;
    (2) All ongoing travel demand management or transportation 
systemmanagement activities; and
    (3) Completion of all regionally significant projects, regardlessof 
funding source, which are currently under construction or areundergoing 
right-of-way acquisition (except for hardship acquisitionand protective 
buying); come from the first year of the previouslyconforming 
transportation plan and/or TIP; or have completed the NEPAprocess.

[[Page 580]]

    (i) ``Action'' scenario. The regionalemissions analysis required by 
paragraphs (b) and (c) of this sectionmust estimate the emissions that 
would result from the``Action'' scenario in each analysis year. 
The``Action'' scenario must be defined for each of theanalysis years. 
The ``Action'' scenario is thetransportation system that would result 
from the implementation of theproposed action (transportation plan, TIP, 
or project not from aconforming transportation plan and TIP) and all 
other expectedregionally significant projects in the nonattainment area. 
The``Action'' scenario must include the following (exceptthat exempt 
projects listed in Sec. 93.126 and projectsexempt from regional 
emissions analysis as listed inSec. 93.127 need not be explicitly 
considered):
    (1) All facilities, services, and activities in the``Baseline'' 
scenario;
    (2) Completion of all TCMs and regionally significant 
projects(including facilities, services, and activities) 
specificallyidentified in the proposed transportation plan which will 
beoperational or in effect in the analysis year, except that 
regulatoryTCMs may not be assumed to begin at a future time unless 
theregulation is already adopted by the enforcing jurisdiction or the 
TCMis identified in the applicable implementation plan;
    (3) All travel demand management programs and transportationsystem 
management activities known to the MPO, but not included in 
theapplicable implementation plan or utilizing any Federal funding 
orapproval, which have been fully adopted and/or funded by the 
enforcingjurisdiction or sponsoring agency since the last 
conformitydetermination;
    (4) The incremental effects of any travel demand managementprograms 
and transportation system management activities known to theMPO, but not 
included in the applicable implementation plan orutilizing any Federal 
funding or approval, which were adopted and/orfunded prior to the date 
of the last conformity determination, butwhich have been modified since 
then to be more stringent or effective;
    (5) Completion of all expected regionally significant highway 
andtransit projects which are not from a conforming transportation 
planand TIP; and
    (6) Completion of all expected regionally significant non-FHWA/
FTAhighway and transit projects that have clear funding sources 
andcommitments leading toward their implementation and completion by 
theanalysis year.
    (j) Projects not from a conforming transportation plan andTIP. For 
the regional emissions analysis required by paragraphs (b)through (e) of 
this section, if the project which is not from aconforming 
transportation plan and TIP is a modification of a projectcurrently in 
the plan or TIP, the `Baseline' scenariomust include the project with 
its original design concept and scope,and the `Action' scenario must 
include the project withits new design concept and scope.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40079, July1, 2004; 70 
FR 24291, May 6, 2005; 73 FR 4441, Jan. 24, 2008]



Sec. 93.120  Consequences of control strategy implementation plan failures.

    (a) Disapprovals. (1) If EPA disapproves any submittedcontrol 
strategy implementation plan revision (with or without aprotective 
finding), the conformity status of the transportation planand TIP shall 
lapse on the date that highway sanctions as a result ofthe disapproval 
are imposed on the nonattainment area under section179(b)(1) of the CAA. 
No new transportation plan, TIP, or project maybe found to conform until 
another control strategy implementation planrevision fulfilling the same 
CAA requirements is submitted andconformity to this submission is 
determined.
    (2) If EPA disapproves a submitted control strategy 
implementationplan revision without making a protective finding, only 
projects inthe first four years of the currently conforming 
transportation planand TIP or that meet the requirements of Sec. 
93.104(f)during the 12-month lapse grace period may be found to conform. 
Thismeans that beginning on the effective date of a disapproval without 
aprotective finding, no transportation plan, TIP, or project not in 
thefirst four years of the currently conforming transportation plan 
andTIP or that meets the

[[Page 581]]

requirements of Sec. 93.104(f)during the 12-month lapse grace period 
may be found to conform untilanother control strategy implementation 
plan revision fulfilling thesame CAA requirements is submitted, EPA 
finds its motor vehicleemissions budget(s) adequate pursuant to Sec. 
93.118 orapproves the submission, and conformity to the implementation 
planrevision is determined.
    (3) In disapproving a control strategy implementation planrevision, 
EPA would give a protective finding where a submitted plancontains 
adopted control measures or written commitments to adoptenforceable 
control measures that fully satisfy the emissionsreductions requirements 
relevant to the statutory provision for whichthe implementation plan 
revision was submitted, such as reasonablefurther progress or 
attainment.
    (b) Failure to submit and incompleteness. In areas where EPAnotifies 
the State, MPO, and DOT of the State's failure to submit acontrol 
strategy implementation plan or submission of an incompletecontrol 
strategy implementation plan revision (either of whichinitiates the 
sanction process under CAA sections 179 or 110(m)), theconformity status 
of the transportation plan and TIP shall lapse onthe date that highway 
sanctions are imposed on the nonattainment areafor such failure under 
section 179(b)(1) of the CAA, unless thefailure has been remedied and 
acknowledged by a letter from the EPARegional Administrator.
    (c) Federal implementation plans. If EPA promulgates aFederal 
implementation plan that contains motor vehicle emissionsbudget(s) as a 
result of a State failure, the conformity lapse imposedby this section 
because of that State failure is removed.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July1, 2004; 73 
FR 4441, Jan. 24, 2008]



Sec. 93.121  Requirements for adoption or approval of projects by otherrecipients of funds designated under title 23 U.S.C. or the FederalTransit Laws.

    (a) Except as provided in paragraph (b) of this section, norecipient 
of Federal funds designated under title 23 U.S.C. or theFederal Transit 
Laws shall adopt or approve a regionally significanthighway or transit 
project, regardless of funding source, unless therecipient finds that 
the requirements of one of the following are met:
    (1) The project comes from the currently conforming 
transportationplan and TIP (or meets the requirements of Sec. 
93.104(f)during the 12-month lapse grace period), and the project's 
designconcept and scope have not changed significantly from those that 
wereincluded in the regional emissions analysis for that 
transportationplan and TIP;
    (2) The project is included in the regional emissions analysis 
forthe currently conforming transportation plan and TIP 
conformitydetermination (or meets the requirements of Sec. 
93.104(f)during the 12-month lapse grace period), even if the project is 
notstrictly included in the transportation plan or TIP for the purpose 
ofMPO project selection or endorsement, and the project's design 
conceptand scope have not changed significantly from those that were 
includedin the regional emissions analysis; or
    (3) A new regional emissions analysis including the project andthe 
currently conforming transportation plan and TIP demonstrates thatthe 
transportation plan and TIP would still conform if the projectwere 
implemented (consistent with the requirements ofSec. Sec. 93.118 and/or 
93.119 for a project not from aconforming transportation plan and TIP).
    (b) In isolated rural nonattainment and maintenance areas subjectto 
Sec. 93.109(l), no recipient of Federal funds designatedunder title 23 
U.S.C. or the Federal Transit Laws shall adopt orapprove a regionally 
significant highway or transit project,regardless of funding source, 
unless the recipient finds that therequirements of one of the following 
are met:
    (1) The project was included in the regional emissions 
analysissupporting the most recent conformity determination that 
reflects theportion of the statewide transportation plan and statewide 
TIP whichare in the nonattainment or maintenance area, and the project's 
designconcept and scope has not changed significantly; or

[[Page 582]]

    (2) A new regional emissions analysis including the projectand all 
other regionally significant projects expected in thenonattainment or 
maintenance area demonstrates that those projects inthe statewide 
transportation plan and statewide TIP which are in thenonattainment or 
maintenance area would still conform if the projectwere implemented 
(consistent with the requirements ofSec. Sec. 93.118 and/or 93.119 for 
projects not from aconforming transportation plan and TIP).
    (c) Notwithstanding paragraphs (a) and (b) of this section, 
innonattainment and maintenance areas subject toSec. 93.109(j) or (k) 
for a given pollutant/precursor andNAAQS, no recipient of Federal funds 
designated under title 23 U.S.C.or the Federal Transit Laws shall adopt 
or approve a regionallysignificant highway or transit project, 
regardless of funding source,unless the recipient finds that the 
requirements of one of thefollowing are met for that pollutant/precursor 
and NAAQS:
    (1) The project was included in the most recent 
conformitydetermination for the transportation plan and TIP and the 
project'sdesign concept and scope has not changed significantly; or
    (2) The project was included in the most recent 
conformitydetermination that reflects the portion of the 
statewidetransportation plan and statewide TIP which are in the 
nonattainmentor maintenance area, and the project's design concept and 
scope hasnot changed significantly.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July1, 2004; 73 
FR 4441, Jan. 24, 2008]



Sec. 93.122  Procedures for determining regional transportation-relatedemissions.

    (a) General requirements. (1) The regional emissionsanalysis 
required by Sec. Sec. 93.118 and 93.119 for thetransportation plan, 
TIP, or project not from a conforming plan andTIP must include all 
regionally significant projects expected in thenonattainment or 
maintenance area. The analysis shall include FHWA/FTAprojects proposed 
in the transportation plan and TIP and all otherregionally significant 
projects which are disclosed to the MPO asrequired by Sec. 93.105. 
Projects which are not regionallysignificant are not required to be 
explicitly modeled, but vehiclemiles traveled (VMT) from such projects 
must be estimated inaccordance with reasonable professional practice. 
The effects of TCMsand similar projects that are not regionally 
significant may also beestimated in accordance with reasonable 
professional practice.
    (2) The emissions analysis may not include for emissions 
reductioncredit any TCMs or other measures in the applicable 
implementationplan which have been delayed beyond the scheduled date(s) 
until suchtime as their implementation has been assured. If the measure 
has beenpartially implemented and it can be demonstrated that it is 
providingquantifiable emission reduction benefits, the emissions 
analysis mayinclude that emissions reduction credit.
    (3) Emissions reduction credit from projects, programs, oractivities 
which require a regulatory action in order to beimplemented may not be 
included in the emissions analysis unless:
    (i) The regulatory action is already adopted by the 
enforcingjurisdiction;
    (ii) The project, program, or activity is included in theapplicable 
implementation plan;
    (iii) The control strategy implementation plan submission 
ormaintenance plan submission that establishes the motor 
vehicleemissions budget(s) for the purposes of Sec. 93.118 containsa 
written commitment to the project, program, or activity by theagency 
with authority to implement it; or
    (iv) EPA has approved an opt-in to a Federally enforced program,EPA 
has promulgated the program (if the control program is a 
Federalresponsibility, such as vehicle tailpipe standards), or the Clean 
AirAct requires the program without need for individual State action 
andwithout any discretionary authority for EPA to set its 
stringency,delay its effective date, or not implement the program.
    (4) Emissions reduction credit from control measures that are 
notincluded in the transportation plan and TIP and that do not require 
aregulatory action in order to be implemented may not be

[[Page 583]]

includedin the emissions analysis unless the conformity determination 
includeswritten commitments to implementation from the appropriate 
entities.
    (i) Persons or entities voluntarily committing to control 
measuresmust comply with the obligations of such commitments.
    (ii) The conformity implementation plan revision required inSec. 
51.390 of this chapter must provide that writtencommitments to control 
measures that are not included in thetransportation plan and TIP must be 
obtained prior to a conformitydetermination and that such commitments 
must be fulfilled.
    (5) A regional emissions analysis for the purpose of satisfyingthe 
requirements of Sec. 93.119 must make the sameassumptions in both the 
``Baseline'' and``Action'' scenarios regarding control measures that 
areexternal to the transportation system itself, such as vehicle 
tailpipeor evaporative emission standards, limits on gasoline 
volatility,vehicle inspection and maintenance programs, and oxygenated 
orreformulated gasoline or diesel fuel.
    (6) The ambient temperatures used for the regional emissionsanalysis 
shall be consistent with those used to establish theemissions budget in 
the applicable implementation plan. All otherfactors, for example the 
fraction of travel in a hot stabilized enginemode, must be consistent 
with the applicable implementation plan,unless modified after 
interagency consultation according toSec. 93.105(c)(1)(i) to 
incorporate additional or moregeographically specific information or 
represent a logically estimatedtrend in such factors beyond the period 
considered in the applicableimplementation plan.
    (7) Reasonable methods shall be used to estimate nonattainment 
ormaintenance area VMT on off-network roadways within the 
urbantransportation planning area, and on roadways outside the 
urbantransportation planning area.
    (b) Regional emissions analysis in serious, severe, and extremeozone 
nonattainment areas and serious CO nonattainment areas must meetthe 
requirements of paragraphs (b) (1) through (3) of this section iftheir 
metropolitan planning area contains an urbanized area populationover 
200,000.
    (1) By January 1, 1997, estimates of regional transportation-related 
emissions used to support conformity determinations must bemade at a 
minimum using network-based travel models according toprocedures and 
methods that are available and in practice andsupported by current and 
available documentation. These procedures,methods, and practices are 
available from DOT and will be updatedperiodically. Agencies must 
discuss these modeling procedures andpractices through the interagency 
consultation process, as required bySec. 93.105(c)(1)(i). Network-based 
travel models must at aminimum satisfy the following requirements:
    (i) Network-based travel models must be validated against 
observedcounts (peak and off-peak, if possible) for a base year that is 
notmore than 10 years prior to the date of the conformity 
determination.Model forecasts must be analyzed for reasonableness and 
compared tohistorical trends and other factors, and the results must 
bedocumented;
    (ii) Land use, population, employment, and other network-basedtravel 
model assumptions must be documented and based on the bestavailable 
information;
    (iii) Scenarios of land development and use must be consistentwith 
the future transportation system alternatives for which emissionsare 
being estimated. The distribution of employment and residences 
fordifferent transportation options must be reasonable;
    (iv) A capacity-sensitive assignment methodology must be used, 
andemissions estimates must be based on a methodology 
whichdifferentiates between peak and off-peak link volumes and speeds 
anduses speeds based on final assigned volumes;
    (v) Zone-to-zone travel impedances used to distribute tripsbetween 
origin and destination pairs must be in reasonable agreementwith the 
travel times that are estimated from final assigned trafficvolumes. 
Where use of transit currently is anticipated to be asignificant factor 
in satisfying transportation demand, these timesshould

[[Page 584]]

also be used for modeling mode splits; and
    (vi) Network-based travel models must be reasonably sensitive 
tochanges in the time(s), cost(s), and other factors affecting 
travelchoices.
    (2) Reasonable methods in accordance with good practice must beused 
to estimate traffic speeds and delays in a manner that issensitive to 
the estimated volume of travel on each roadway segmentrepresented in the 
network-based travel model.
    (3) Highway Performance Monitoring System (HPMS) estimates ofvehicle 
miles traveled (VMT) shall be considered the primary measureof VMT 
within the portion of the nonattainment or maintenance area andfor the 
functional classes of roadways included in HPMS, for urbanareas which 
are sampled on a separate urban area basis. For areas withnetwork-based 
travel models, a factor (or factors) may be developed toreconcile and 
calibrate the network-based travel model estimates ofVMT in the base 
year of its validation to the HPMS estimates for thesame period. These 
factors may then be applied to model estimates offuture VMT. In this 
factoring process, consideration will be given todifferences between 
HPMS and network-based travel models, such asdifferences in the facility 
coverage of the HPMS and the modelednetwork description. Locally 
developed count- based programs and otherdepartures from these 
procedures are permitted subject to theinteragency consultation 
procedures of Sec. 93.105(c)(1)(i).
    (c) Two-year grace period for regional emissions 
analysisrequirements in certain ozone and CO areas. The requirements 
ofparagraph (b) of this section apply to such areas or portions of 
suchareas that have not previously been required to meet 
theserequirements for any existing NAAQS two years from the following:
    (1) The effective date of EPA's reclassification of an ozone or 
COnonattainment area that has an urbanized area population greater 
than200,000 to serious or above;
    (2) The official notice by the Census Bureau that determines 
theurbanized area population of a serious or above ozone or 
COnonattainment area to be greater than 200,000; or,
    (3) The effective date of EPA's action that classifies a 
newlydesignated ozone or CO nonattainment area that has an urbanized 
areapopulation greater than 200,000 as serious or above.
    (d) In all areas not otherwise subject to paragraph (b) of 
thissection, regional emissions analyses must use those 
proceduresdescribed in paragraph (b) of this section if the use of 
thoseprocedures has been the previous practice of the MPO. Otherwise, 
areasnot subject to paragraph (b) of this section may estimate 
regionalemissions using any appropriate methods that account for VMT 
growthby, for example, extrapolating historical VMT or projecting future 
VMTby considering growth in population and historical growth trends 
forVMT per person. These methods must also consider future 
economicactivity, transit alternatives, and transportation system 
policies.
    (e) PM10 from construction-related fugitivedust. (1) For areas in 
which the implementation plan does notidentify construction-related 
fugitive PM10 as acontributor to the nonattainment problem, 
the fugitivePM10 emissions associated with highway and 
transit projectconstruction are not required to be considered in the 
regionalemissions analysis.
    (2) In PM10 nonattainment and maintenance areas 
withimplementation plans which identify construction-related 
fugitivePM10 as a contributor to the nonattainment problem, 
theregional PM10 emissions analysis shall 
considerconstruction-related fugitive PM10 and shall account 
forthe level of construction activity, the fugitive 
PM10control measures in the applicable implementation plan, 
and the dust-producing capacity of the proposed activities.
    (f) PM2.5 from construction-related fugitivedust. (1) For 
PM2.5 areas in which the implementationplan does not identify 
construction-related fugitive PM2.5as a significant 
contributor to the nonattainment problem, thefugitive PM2.5 
emissions associated with highway andtransit project construction are 
not required to be considered in theregional emissions analysis.

[[Page 585]]

    (2) In PM2.5 nonattainment and maintenance areaswith 
implementation plans which identify construction-related 
fugitivePM2.5 as a significant contributor to the 
nonattainmentproblem, the regional PM2.5 emissions analysis 
shallconsider construction-related fugitive PM2.5 and 
shallaccount for the level of construction activity, the 
fugitivePM2.5 control measures in the applicable 
implementationplan, and the dust-producing capacity of the proposed 
activities.
    (g) Reliance on previous regional emissions analysis. (1)Conformity 
determinations for a new transportation plan and/or TIP maybe 
demonstrated to satisfy the requirements ofSec. Sec. 93.118 (``Motor 
vehicle emissionsbudget'') or 93.119 (``Interim emissions in areas 
withoutmotor vehicle emissions budgets'') without new regionalemissions 
analysis if the previous regional emissions analysis alsoapplies to the 
new plan and/or TIP. This requires a demonstrationthat:
    (i) The new plan and/or TIP contain all projects which must 
bestarted in the plan and TIP's timeframes in order to achieve 
thehighway and transit system envisioned by the transportation plan;
    (ii) All plan and TIP projects which are regionally significantare 
included in the transportation plan with design concept and 
scopeadequate to determine their contribution to the transportation 
plan'sand/or TIP's regional emissions at the time of the previous 
conformitydetermination;
    (iii) The design concept and scope of each regionally 
significantproject in the new plan and/or TIP are not significantly 
differentfrom that described in the previous transportation plan; and
    (iv) The previous regional emissions analysis is consistent withthe 
requirements of Sec. Sec. 93.118 (including thatconformity to all 
currently applicable budgets is demonstrated) and/or93.119, as 
applicable.
    (2) A project which is not from a conforming transportation planand 
a conforming TIP may be demonstrated to satisfy the requirementsof Sec. 
93.118 or Sec. 93.119 without additionalregional emissions analysis if 
allocating funds to the project willnot delay the implementation of 
projects in the transportation plan orTIP which are necessary to achieve 
the highway and transit systemenvisioned by the transportation plan, the 
previous regional emissionsanalysis is still consistent with the 
requirements ofSec. 93.118 (including that conformity to all 
currentlyapplicable budgets is demonstrated) and/or Sec. 93.119, 
asapplicable, and if the project is either:
    (i) Not regionally significant; or
    (ii) Included in the conforming transportation plan (even if it 
isnot specifically included in the latest conforming TIP) with 
designconcept and scope adequate to determine its contribution to 
thetransportation plan's regional emissions at the time of 
thetransportation plan's conformity determination, and the design 
conceptand scope of the project is not significantly different from 
thatdescribed in the transportation plan.
    (3) A conformity determination that relies on paragraph (g) ofthis 
section does not satisfy the frequency requirements ofSec. 93.104(b) or 
(c).

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July1, 2004]



Sec. 93.123  Procedures for determining localized CO, PM[bdi1][bdi0], andPM[bdi2].[bdi5] concentrations (hot-spot analysis).

    (a) CO hot-spot analysis. (1) The demonstrations required bySec. 
93.116 (``Localized CO, PM10, andPM2.5 
violations'') must be based on quantitativeanalysis using the applicable 
air quality models, data bases, andother requirements specified in 40 
CFR part 51, Appendix W (Guidelineon Air Quality Models). These 
procedures shall be used in thefollowing cases, unless different 
procedures developed through theinteragency consultation process 
required in Sec. 93.105 andapproved by the EPA Regional Administrator 
are used:
    (i) For projects in or affecting locations, areas, or categoriesof 
sites which are identified in the applicable implementation plan assites 
of violation or possible violation;
    (ii) For projects affecting intersections that are at Level-of-
Service D, E, or F, or those that will change to Level-of-Service D,E, 
or F because of increased traffic volumes related to the project;

[[Page 586]]

    (iii) For any project affecting one or more of the top 
threeintersections in the nonattainment or maintenance area with 
highesttraffic volumes, as identified in the applicable implementation 
plan;and
    (iv) For any project affecting one or more of the top 
threeintersections in the nonattainment or maintenance area with the 
worstlevel of service, as identified in the applicable implementation 
plan.
    (2) In cases other than those described in paragraph (a)(1) ofthis 
section, the demonstrations required by Sec. 93.116 maybe based on 
either:
    (i) Quantitative methods that represent reasonable and 
commonprofessional practice; or
    (ii) A qualitative consideration of local factors, if this 
canprovide a clear demonstration that the requirements ofSec. 93.116 
are met.
    (3) DOT, in consultation with EPA, may also choose to make 
acategorical hot-spot finding that (93.116(a) is met without furtherhot-
spot analysis for any project described in paragraphs (a)(1) and(a)(2) 
of this section based on appropriate modeling. DOT, inconsultation with 
EPA, may also consider the current air qualitycircumstances of a given 
CO nonattainment or maintenance area incategorical hot-spot findings for 
applicable FHWA or FTA projects.
    (b) PM10 and PM2.5 hot-spotanalyses. (1) The 
hot-spot demonstration required bySec. 93.116 must be based on 
quantitative analysis methodsfor the following types of projects:
    (i) New highway projects that have a significant number of 
dieselvehicles, and expanded highway projects that have a 
significantincrease in the number of diesel vehicles;
    (ii) Projects affecting intersections that are at Level-of-ServiceD, 
E, or F with a significant number of diesel vehicles, or those thatwill 
change to Level-of-Service D, E, or F because of increasedtraffic 
volumes from a significant number of diesel vehicles relatedto the 
project;
    (iii) New bus and rail terminals and transfer points that have 
asignificant number of diesel vehicles congregating at a singlelocation;
    (iv) Expanded bus and rail terminals and transfer points 
thatsignificantly increase the number of diesel vehicles congregating at 
asingle location; and
    (v) Projects in or affecting locations, areas, or categories ofsites 
which are identified in the PM10 orPM2.5 
applicable implementation plan or implementationplan submission, as 
appropriate, as sites of violation or possibleviolation.
    (2) Where quantitative analysis methods are not available, 
thedemonstration required by Sec. 93.116 for projects describedin 
paragraph (b)(1) of this section must be based on a 
qualitativeconsideration of local factors.
    (3) DOT, in consultation with EPA, may also choose to make 
acategorical hot-spot finding that Sec. 93.116 is met withoutfurther 
hot-spot analysis for any project described in paragraph (b)(1) of this 
section based on appropriate modeling. DOT, inconsultation with EPA, may 
also consider the current air qualitycircumstances of a given 
PM2.5 or PM10nonattainment or maintenance area in 
categorical hot-spot findings forapplicable FHWA or FTA projects.
    (4) The requirements for quantitative analysis contained in 
thisparagraph (b) will not take effect until EPA releases 
modelingguidance on this subject and announces in the Federal 
Registerthat these requirements are in effect.
    (c) General requirements. (1) Estimated pollutantconcentrations must 
be based on the total emissions burden which mayresult from the 
implementation of the project, summed together withfuture background 
concentrations. The total concentration must beestimated and analyzed at 
appropriate receptor locations in the areasubstantially affected by the 
project.
    (2) Hot-spot analyses must include the entire project, and may 
beperformed only after the major design features which willsignificantly 
impact concentrations have been identified. The futurebackground 
concentration should be estimated by multiplying currentbackground by 
the ratio of future to current traffic and the ratio offuture to current 
emission factors.
    (3) Hot-spot analysis assumptions must be consistent with those 
inthe

[[Page 587]]

regional emissions analysis for those inputs which arerequired for both 
analyses.
    (4) CO, PM10, or PM2.5 mitigation orcontrol 
measures shall be assumed in the hot-spot analysis only wherethere are 
written commitments from the project sponsor and/or operatorto implement 
such measures, as required by Sec. 93.125(a).
    (5) CO, PM10, and PM2.5 hot-spot analysesare 
not required to consider construction-related activities whichcause 
temporary increases in emissions. Each site which is affected 
byconstruction-related activities shall be considered separately, 
usingestablished ``Guideline'' methods. Temporary increases aredefined 
as those which occur only during the construction phase andlast five 
years or less at any individual site.

[58 FR 62235, Nov. 24, 1993, as amended at 71 FR 12510, Mar.10, 2006; 73 
FR 4441, Jan. 24, 2008]



Sec. 93.124  Using the motor vehicle emissions budget in the applicableimplementation plan (or implementation plan submission).

    (a) In interpreting an applicable implementation plan 
(orimplementation plan submission) with respect to its motor 
vehicleemissions budget(s), the MPO and DOT may not infer additions to 
thebudget(s) that are not explicitly intended by the implementation 
plan(or submission). Unless the implementation plan explicitly 
quantifiesthe amount by which motor vehicle emissions could be higher 
whilestill allowing a demonstration of compliance with the 
milestone,attainment, or maintenance requirement and explicitly states 
an intentthat some or all of this additional amount should be available 
to theMPO and DOT in the emissions budget for conformity purposes, the 
MPOmay not interpret the budget to be higher than the 
implementationplan's estimate of future emissions. This applies in 
particular toapplicable implementation plans (or submissions) which 
demonstratethat after implementation of control measures in the 
implementationplan:
    (1) Emissions from all sources will be less than the totalemissions 
that would be consistent with a required demonstration of anemissions 
reduction milestone;
    (2) Emissions from all sources will result in achieving 
attainmentprior to the attainment deadline and/or ambient concentrations 
in theattainment deadline year will be lower than needed to 
demonstrateattainment; or
    (3) Emissions will be lower than needed to provide for 
continuedmaintenance.
    (b) A conformity demonstration shall not trade emissions 
amongbudgets which the applicable implementation plan (or 
implementationplan submission) allocates for different pollutants or 
precursors, oramong budgets allocated to motor vehicles and other 
sources, unlessthe implementation plan establishes appropriate 
mechanisms for suchtrades.
    (c) If the applicable implementation plan (or implementation 
plansubmission) estimates future emissions by geographic subarea of 
thenonattainment area, the MPO and DOT are not required to consider 
thisto establish subarea budgets, unless the applicable 
implementationplan (or implementation plan submission) explicitly 
indicates anintent to create such subarea budgets for the purposes of 
conformity.
    (d) If a nonattainment area includes more than one MPO, 
theimplementation plan may establish motor vehicle emissions budgets 
foreach MPO, or else the MPOs must collectively make a 
conformitydetermination for the entire nonattainment area.

[62 FR 43801. Aug. 15, 1997, as amended at 69 FR 40081, July1, 2004]



Sec. 93.125  Enforceability of design concept and scope and project-levelmitigation and control measures.

    (a) Prior to determining that a transportation project is 
inconformity, the MPO, other recipient of funds designated under title23 
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain fromthe 
project sponsor and/or operator written commitments to implementin the 
construction of the project and operation of the resultingfacility or 
service any project-level mitigation or control measureswhich are 
identified as conditions for NEPA process completion withrespect to

[[Page 588]]

local CO, PM10, or PM2.5impacts. Before a 
conformity determination is made, writtencommitments must also be 
obtained for project-level mitigation orcontrol measures which are 
conditions for making conformitydeterminations for a transportation plan 
or TIP and are included inthe project design concept and scope which is 
used in the regionalemissions analysis required by Sec. Sec. 
93.118(``Motor vehicle emissions budget'') and 93.119(``Interim 
emissions in areas without motor vehicle emissionsbudgets'') or used in 
the project-level hot-spot analysisrequired by Sec. 93.116.
    (b) Project sponsors voluntarily committing to mitigation measuresto 
facilitate positive conformity determinations must comply with 
theobligations of such commitments.
    (c) The implementation plan revision required inSec. 51.390 of this 
chapter shall provide that writtencommitments to mitigation measures 
must be obtained prior to apositive conformity determination, and that 
project sponsors mustcomply with such commitments.
    (d) If the MPO or project sponsor believes the mitigation orcontrol 
measure is no longer necessary for conformity, the projectsponsor or 
operator may be relieved of its obligation to implement themitigation or 
control measure if it can demonstrate that theapplicable hot-spot 
requirements of Sec. 93.116, emissionbudget requirements of Sec. 
93.118, and interim emissionsrequirements of Sec. 93.119 are satisfied 
without themitigation or control measure, and so notifies the agencies 
involvedin the interagency consultation process required underSec. 
93.105. The MPO and DOT must find that thetransportation plan and TIP 
still satisfy the applicable requirementsof Sec. Sec. 93.118 and/or 
93.119 and that the projectstill satisfies the requirements of Sec. 
93.116, andtherefore that the conformity determinations for the 
transportationplan, TIP, and project are still valid. This finding is 
subject to theapplicable public consultation requirements inSec. 
93.105(e) for conformity determinations for projects.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July1, 2004; 71 
FR 12510, Mar. 10, 2006]



Sec. 93.126  Exempt projects.

    Notwithstanding the other requirements of this subpart, highwayand 
transit projects of the types listed in Table 2 of this sectionare 
exempt from the requirement to determine conformity. Such projectsmay 
proceed toward implementation even in the absence of a 
conformingtransportation plan and TIP. A particular action of the type 
listed inTable 2 of this section is not exempt if the MPO in 
consultation withother agencies (see Sec. 93.105(c)(1)(iii)), the EPA, 
andthe FHWA (in the case of a highway project) or the FTA (in the case 
ofa transit project) concur that it has potentially adverse 
emissionsimpacts for any reason. States and MPOs must ensure that 
exemptprojects do not interfere with TCM implementation. Table 2 
follows:

                        Table 2--Exempt Projects

                                 Safety

Railroad/highway crossing.
Projects that correct, improve, or eliminate a hazardous locationor 
feature
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Highway Safety Improvement Program implementation
Traffic control devices and operating assistance other thansignalization 
projects.
Railroad/highway crossing warning devices.
Guardrails, median barriers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking.
Emergency relief (23 U.S.C. 125).
Fencing.
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Lighting improvements.
Widening narrow pavements or reconstructing bridges (no additionaltravel 
lanes).
Emergency truck pullovers.

                              Mass Transit

Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles \1\.
Purchase of office, shop, and operating equipment for 
existingfacilities.
Purchase of operating equipment for vehicles (e.g., radios,fareboxes, 
lifts, etc.).
Construction or renovation of power, signal, and communicationssystems.

[[Page 589]]

Construction of small passenger shelters and informationkiosks.
Reconstruction or renovation of transit buildings and structures(e.g., 
rail or bus buildings, storage and maintenance facilities,stations, 
terminals, and ancillary structures).
Rehabilitation or reconstruction of track structures, track, andtrackbed 
in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehiclesor for 
minor expansions of the fleet \1\.
Construction of new bus or rail storage/maintenance 
facilitiescategorically excluded in 23 CFR part 771.

                               Air Quality

Continuation of ride-sharing and van-pooling promotion activitiesat 
current levels.
Bicycle and pedestrian facilities.

                                  Other

Specific activities which do not involve or lead directly 
toconstruction, such as:
    Planning and technical studies.
    Grants for training and research programs.
    Planning activities conducted pursuant to titles 23 and 49 U.S.C.
    Federal-aid systems revisions.
Engineering to assess social, economic, and environmental effectsof the 
proposed action or alternatives to that action.
Noise attenuation.
Emergency or hardship advance land acquisitions (23 CFR 710.503).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional and informational signs.
Transportation enhancement activities (except rehabilitation 
andoperation of historic transportation buildings, structures, 
orfacilities).
Repair of damage caused by natural disasters, civil unrest, orterrorist 
acts, except projects involving substantial functional,locational or 
capacity changes.
    Note: \1\In PM10 and PM2.5nonattainment or 
maintenance areas, such projects are exempt only ifthey are in 
compliance with control measures in the applicableimplementation plan.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July1, 2004; 71 
FR 12510, Mar. 10, 2006; 73 FR 4441, Jan. 24, 2008]



Sec. 93.127  Projects exempt from regional emissions analyses.

    Notwithstanding the other requirements of this subpart, highwayand 
transit projects of the types listed in Table 3 of this sectionare 
exempt from regional emissions analysis requirements. The localeffects 
of these projects with respect to CO concentrations must beconsidered to 
determine if a hot-spot analysis is required prior tomaking a project-
level conformity determination. The local effects ofprojects with 
respect to PM10 and PM2.5concentrations must be 
considered and a hot-spot analysis performedprior to making a project-
level conformity determination, if a projectin Table 3 also meets the 
criteria in Sec. 93.123(b)(1).These projects may then proceed to the 
project development processeven in the absence of a conforming 
transportation plan and TIP. Aparticular action of the type listed in 
Table 3 of this section is notexempt from regional emissions analysis if 
the MPO in consultationwith other agencies (see Sec. 
93.105(c)(1)(iii)), the EPA,and the FHWA (in the case of a highway 
project) or the FTA (in thecase of a transit project) concur that it has 
potential regionalimpacts for any reason. Table 3 follows:

        Table 3--Projects Exempt From Regional Emissions Analyses

Intersection channelization projects.
Intersection signalization projects at individualintersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.
Truck size and weight inspection stations.
Bus terminals and transfer points.

[58 FR 62235, Nov. 24, 1993, as amended at 71 FR 12511, Mar.10, 2006]



Sec. 93.128  Traffic signal synchronization projects.

    Traffic signal synchronization projects may be approved, funded,and 
implemented without satisfying the requirements of this subpart.However, 
all subsequent regional emissions analyses required bySec. Sec. 93.118 
and 93.119 for transportation plans,TIPs, or projects not from a 
conforming plan and TIP must include suchregionally significant traffic 
signal synchronization projects.



Sec. 93.129  Special exemptions from conformity requirements for pilot programareas.

    EPA and DOT may exempt no more than six areas for no more thanthree 
years from certain requirements of this subpart if these areasare 
selected to

[[Page 590]]

participate in a conformity pilot program andhave developed alternative 
requirements that have been approved by EPAas an implementation plan 
revision in accordance withSec. 51.390 of this chapter. For the 
duration of the pilotprogram, areas selected to participate in the pilot 
program mustcomply with the conformity requirements of the pilot 
area'simplementation plan revision for Sec. 51.390 of this chapterand 
all other requirements in 40 CFR parts 51 and 93 that are notcovered by 
the pilot area's implementation plan revision forSec. 51.390 of this 
chapter. The alternative conformityrequirements in conjunction with any 
applicable state and/or federalconformity requirements must be proposed 
to fulfill all of therequirements of and achieve results equivalent to 
or better thansection 176(c) of the Clean Air Act. After the three-year 
duration ofthe pilot program has expired, areas will again be subject to 
all ofthe requirements of this subpart and 40 CFR part 51, subpart T, 
and/orto the requirements of any implementation plan revision that 
waspreviously approved by EPA in accordance with Sec. 51.390 ofthis 
chapter.

[64 FR 13483, Mar. 18, 1999]



 Subpart B_Determining Conformity of General Federal Actionsto State or 
                      Federal Implementation Plans

    Source: 58 FR 63253, Nov. 30, 1993, unless otherwisenoted.



Sec. 93.150  Prohibition.

    (a) No department, agency or instrumentality of the 
FederalGovernment shall engage in, support in any way or provide 
financialassistance for, license or permit, or approve any activity 
which doesnot conform to an applicable implementation plan.
    (b) A Federal agency must make a determination that a Federalaction 
conforms to the applicable implementation plan in accordancewith the 
requirements of this subpart before the action is taken.
    (c) Paragraph (b) of this section does not include Federal 
actionswhere:
    (1) A National Environmental Policy Act (NEPA) analysis wascompleted 
as evidenced by a final environmental assessment (EA),environmental 
impact statement (EIS), or finding of no significantimpact (FONSI) that 
was prepared prior to January 31, 1994; or
    (2)(i) Prior to January 31, 1994, an environmental analysis 
wascommenced or a contract was awarded to develop the 
specificenvironmental analysis;
    (ii) Sufficient environmental analysis is completed by March 15,1994 
so that the Federal agency may determine that the Federal actionis in 
conformity with the specific requirements and the purposes ofthe 
applicable SIP pursuant to the agency's affirmative obligationunder 
section 176(c) of the Clean Air Act (Act); and
    (iii) A written determination of conformity under section 176(c)of 
the Act has been made by the Federal agency responsible for theFederal 
action by March 15, 1994.
    (d) Notwithstanding any provision of this subpart, a 
determinationthat an action is in conformance with the applicable 
implementationplan does not exempt the action from any other 
requirements of theapplicable implementation plan, the National 
Environmental Policy Act(NEPA), or the Clean Air Act (Act).

[58 FR 63253, Nov. 30, 1993; 58 FR 67442, Dec. 21, 1993]



Sec. 93.151  State implementation plan (SIP) revision.

    The Federal conformity rules under this subpart, in addition toany 
existing applicable State requirements, establish the conformitycriteria 
and procedures necessary to meet the Act requirements untilsuch time as 
the required conformity SIP revision is approved by EPA.A State's 
conformity provisions must contain criteria and proceduresthat are no 
less stringent than the requirements described in thissubpart. A State 
may establish more stringent conformity criteria andprocedures only if 
they apply equally to nonfederal as well as Federalentities. Following 
EPA approval of the State conformity provisions(or a portion thereof) in 
a revision to the applicable SIP, theapproved (or approved portion of 
the) State criteria and procedures

[[Page 591]]

would govern conformity determinations and the Federal 
conformityregulations contained in this part would apply only for the 
portion,if any, of the State's conformity provisions that is not 
approved byEPA. In addition, any previously applicable SIP requirements 
relatingto conformity remain enforceable until the State revises its SIP 
tospecifically remove them from the SIP and that revision is approved 
byEPA.



Sec. 93.152  Definitions.

    Terms used but not defined in this part shall have the meaninggiven 
them by the Act and EPA's regulations (40 CFR chapter I), inthat order 
of priority.
    Affected Federal land manager means the Federal agency orthe Federal 
official charged with direct responsibility for managementof an area 
designated as Class I under the Act (42 U.S.C. 7472) thatis located 
within 100 km of the proposed Federal action.
    Applicable implementation plan or applicable SIP means theportion 
(or portions) of the SIP or most recent revision thereof,which has been 
approved under section 110 of the Act, or promulgatedunder section 
110(c) of the Act (Federal implementation plan), orpromulgated or 
approved pursuant to regulations promulgated undersection 301(d) of the 
Act and which implements the relevantrequirements of the Act.
    Areawide air quality modeling analysis means an assessmenton a scale 
that includes the entire nonattainment or maintenance areawhich uses an 
air quality dispersion model to determine the effects ofemissions on air 
quality.
    Cause or contribute to a new violation means a Federalaction that:
    (1) Causes a new violation of a national ambient air qualitystandard 
(NAAQS) at a location in a nonattainment or maintenance areawhich would 
otherwise not be in violation of the standard during thefuture period in 
question if the Federal action were not taken; or
    (2) Contributes, in conjunction with other reasonably 
foreseeableactions, to a new violation of a NAAQS at a location in 
anonattainment or maintenance area in a manner that would increase 
thefrequency or severity of the new violation.
    Caused by, as used in the terms ``directemissions'' and ``indirect 
emissions,'' meansemissions that would not otherwise occur in the 
absence of the Federalaction.
    Criteria pollutant or standard means any pollutant for whichthere is 
established a NAAQS at 40 CFR part 50.
    Direct emissions means those emissions of a criteriapollutant or its 
precursors that are caused or initiated by theFederal action and occur 
at the same time and place as the action.
    Emergency means a situation where extremely quick action onthe part 
of the Federal agencies involved is needed and where thetiming of such 
Federal activities makes it impractical to meet therequirements of this 
subpart, such as natural disasters likehurricanes or earthquakes, civil 
disturbances such as terrorist actsand military mobilizations.
    Emissions budgets are those portions of the applicable 
SIP'sprojected emission inventories that describe the levels of 
emissions(mobile, stationary, area, etc.) that provide for meeting 
reasonablefurther progress milestones, attainment, and/or maintenance 
for anycriteria pollutant or its precursors.
    Emissions offsets, for purposes of Sec. 93.158,are emissions 
reductions which are quantifiable, consistent with theapplicable SIP 
attainment and reasonable further progressdemonstrations, surplus to 
reductions required by, and credited to,other applicable SIP provisions, 
enforceable at both the State andFederal levels, and permanent within 
the timeframe specified by theprogram.
    Emissions that a Federal agency has a continuing 
programresponsibility for means emissions that are specifically caused 
byan agency carrying out its authorities, and does not include 
emissionsthat occur due to subsequent activities, unless such activities 
arerequired by the Federal agency. When an agency, in performing 
itsnormal program responsibilities, takes actions itself or 
imposesconditions that result in air pollutant emissions by a non-
Federalentity taking subsequent actions, such emissions are covered by

[[Page 592]]

the meaning of a continuing program responsibility.
    EPA means the Environmental Protection Agency.
    Federal action means any activity engaged in by adepartment, agency, 
or instrumentality of the Federal government, orany activity that a 
department, agency or instrumentality of theFederal government supports 
in any way, provides financial assistancefor, licenses, permits, or 
approves, other than activities related totransportation plans, 
programs, and projects developed, funded, orapproved under title 23 
U.S.C. or the Federal Transit Act (49 U.S.C.1601 et seq.). Where the 
Federal action is a permit, license, orother approval for some aspect of 
a non-Federal undertaking, therelevant activity is the part, portion, or 
phase of the non-Federalundertaking that requires the Federal permit, 
license, or approval.
    Federal agency means, for purposes of this subpart, aFederal 
department, agency, or instrumentality of the Federalgovernment.
    Increase the frequency or severity of any existing violation ofany 
standard in any area means to cause a nonattainment area toexceed a 
standard more often or to cause a violation at a greaterconcentration 
than previously existed and/or would otherwise existduring the future 
period in question, if the project were notimplemented.
    Indirect emissions means those emissions of a criteriapollutant or 
its precursors that:
    (1) Are caused by the Federal action, but may occur later in 
timeand/or may be further removed in distance from the action itself 
butare still reasonably foreseeable; and
    (2) The Federal agency can practicably control and will 
maintaincontrol over due to a continuing program responsibility of the 
Federalagency.
    Local air quality modeling analysis means an assessment oflocalized 
impacts on a scale smaller than the entire nonattainment ormaintenance 
area, including, for example, congested roadwayintersections and 
highways or transit terminals, which uses an airquality dispersion model 
to determine the effects of emissions on airquality.
    Maintenance area means an area with a maintenance planapproved under 
section 175A of the Act.
    Maintenance plan means a revision to the applicable SIP,meeting the 
requirements of section 175A of the Act.
    Metropolitan Planning Organization (MPO) is thatorganization 
designated as being responsible, together with the State,for conducting 
the continuing, cooperative, and comprehensive planningprocess under 23 
U.S.C. 134 and 49 U.S.C. 1607.
    Milestone has the meaning given in sections 182(g)(1) and189(c)(1) 
of the Act.
    National ambient air quality standards (NAAQS) are thosestandards 
established pursuant to section 109 of the Act and includestandards for 
carbon monoxide (CO), lead (Pb), nitrogen dioxide(NO2), 
ozone, particulate matter (PM-10), andsulfur dioxide (SO2).
    NEPA is the National Environmental Policy Act of 1969, asamended (42 
U.S.C. 4321 et seq.).
    Nonattainment area means an area designated as nonattainmentunder 
section 107 of the Act and described in 40 CFR part 81.
    Precursors of a criteria pollutant are:
    (1) For ozone, nitrogen oxides (NOx), unless an area is exemptedfrom 
NOx requirements under section 182(f) of the Act, and volatileorganic 
compounds (VOC).
    (2) For PM-10, those pollutants described in thePM-10 nonattainment 
area applicable SIP as significantcontributors to the PM-10 levels.
    (3) For PM2.5:
    (i) Sulfur dioxide (SO2) in all 
PM2.5nonattainment and maintenance areas,
    (ii) Nitrogen oxides in all PM2.5 nonattainment 
andmaintenance areas unless both the State and EPA determine that it 
isnot a significant precursor, and
    (iii) Volatile organic compounds (VOC) and ammonia(NH3) 
only in PM2.5 nonattainment ormaintenance areas where either 
the State or EPA determines that theyare significant precursors.
    Reasonably foreseeable emissions are projected futureindirect 
emissions that are identified at the time the conformitydetermination is 
made; the location of such emissions is known and

[[Page 593]]

the emissions are quantifiable, as described and documented bythe 
Federal agency based on its own information and after reviewingany 
information presented to the Federal agency.
    Regional water and/or wastewater projects includeconstruction, 
operation, and maintenance of water or wastewaterconveyances, water or 
wastewater treatment facilities, and waterstorage reservoirs which 
affect a large portion of a nonattainment ormaintenance area.
    Regionally significant action means a Federal action forwhich the 
direct and indirect emissions of any pollutant represent 10percent or 
more of a nonattainment or maintenance area's emissioninventory for that 
pollutant.
    Total of direct and indirect emissions means the sum ofdirect and 
indirect emissions increases and decreases caused by theFederal action; 
i.e., the ``net'' emissions consideringall direct and indirect 
emissions. The portion of emissions which areexempt or presumed to 
conform under Sec. 93.153 (c), (d),(e), or (f) are not included in the 
``total of direct andindirect emissions.'' The ``total of direct and 
indirectemissions'' includes emissions of criteria pollutants 
andemissions of precursors of criteria pollutants.

[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July17, 2006]



Sec. 93.153  Applicability.

    (a) Conformity determinations for Federal actions related 
totransportation plans, programs, and projects developed, funded, 
orapproved under title 23 U.S.C. or the Federal Transit Act (49 
U.S.C.1601 et seq.) must meet the procedures and criteria of 40 CFRpart 
51, subpart T, in lieu of the procedures set forth in thissubpart.
    (b) For Federal actions not covered by paragraph (a) of thissection, 
a conformity determination is required for each criteriapollutant or 
precursor where the total of direct and indirectemissions of the 
criteria pollutant or precursor in a nonattainment ormaintenance area 
caused by a Federal action would equal or exceed anyof the rates in 
paragraphs (b)(1) or (2) of this section.
    (1) For purposes of paragraph (b) of this section, the 
followingrates apply in nonattainment areas (NAA's):

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's................................................       50
  Severe NAA's.................................................       25
  Extreme NAA's................................................       10
  Other ozone NAA's outside an ozone transport region..........      100
Other ozone NAA's inside an ozone transport region:
  VOC..........................................................       50
  NOX..........................................................      100
Carbon monoxide: All NAA's.....................................      100
SO2 or NO2: All NAA's..........................................      100
PM-10:
  Moderate NAA's...............................................      100
  Serious NAA's................................................       70
PM2.5:
  Direct emissions.............................................      100
  SO2..........................................................      100
  NOX (unless determined not to be a significantprecursor).....      100
  VOC or ammonia (if determined to be significant precursors)..      100
Pb: All NAA's..................................................       25
------------------------------------------------------------------------

    (2) For purposes of paragraph (b) of this section, the 
followingrates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
  All Maintenance Areas........................................      100
Ozone (VOC's):
  Maintenance areas inside an ozone transport region...........       50
  Maintenance areas outside an ozone transport region..........      100
Carbon monoxide: All Maintenance Areas.........................      100
PM-10: All Maintenance Areas...................................      100
PM2.5:
  Direct emissions.............................................      100
  SO2..........................................................      100
  NOX (unless determined not to be a significantprecursor).....      100
  VOC or ammonia (if determined to be significant precursors)..      100
Pb: All Maintenance Areas......................................       25
------------------------------------------------------------------------

    (c) The requirements of this subpart shall not apply to thefollowing 
Federal actions:
    (1) Actions where the total of direct and indirect emissions 
arebelow the emissions levels specified in paragraph (b) of this 
section.
    (2) Actions which would result in no emissions increase or 
anincrease in emissions that is clearly de minimis:
    (i) Judicial and legislative proceedings.
    (ii) Continuing and recurring activities such as permit 
renewalswhere activities conducted will be similar in

[[Page 594]]

scope and operationto activities currently being conducted.
    (iii) Rulemaking and policy development and issuance.
    (iv) Routine maintenance and repair activities, including repairand 
maintenance of administrative sites, roads, trails, andfacilities.
    (v) Civil and criminal enforcement activities, such 
asinvestigations, audits, inspections, examinations, prosecutions, 
andthe training of law enforcement personnel.
    (vi) Administrative actions such as personnel actions,organizational 
changes, debt management or collection, cashmanagement, internal agency 
audits, program budget proposals, andmatters relating to the 
administration and collection of taxes, dutiesand fees.
    (vii) The routine, recurring transportation of materiel 
andpersonnel.
    (viii) Routine movement of mobile assets, such as ships andaircraft, 
in home port reassignments and stations (when no new supportfacilities 
or personnel are required) to perform as operational groupsand/or for 
repair or overhaul.
    (ix) Maintenance dredging and debris disposal where no new depthsare 
required, applicable permits are secured, and disposal will be atan 
approved disposal site.
    (x) Actions, such as the following, with respect to 
existingstructures, properties, facilities and lands where future 
activitiesconducted will be similar in scope and operation to 
activitiescurrently being conducted at the existing structures, 
properties,facilities, and lands; for example, relocation of 
personnel,disposition of federally-owned existing structures, 
properties,facilities, and lands, rent subsidies, operation and 
maintenance costsubsidies, the exercise of receivership or 
conservatorship authority,assistance in purchasing structures, and the 
production of coins andcurrency.
    (xi) The granting of leases, licenses such as for exports andtrade, 
permits, and easements where activities conducted will besimilar in 
scope and operation to activities currently beingconducted.
    (xii) Planning, studies, and provision of technical assistance.
    (xiii) Routine operation of facilities, mobile assets andequipment.
    (xiv) Transfers of ownership, interests, and titles in 
land,facilities, and real and personal properties, regardless of the 
formor method of the transfer.
    (xv) The designation of empowerment zones, enterprise communities,or 
viticultural areas.
    (xvi) Actions by any of the Federal banking agencies or theFederal 
Reserve Banks, including actions regarding charters,applications, 
notices, licenses, the supervision or examination ofdepository 
institutions or depository institution holding companies,access to the 
discount window, or the provision of financial servicesto banking 
organizations or to any department, agency orinstrumentality of the 
United States.
    (xvii) Actions by the Board of Governors of the Federal 
ReserveSystem or any Federal Reserve Bank necessary to effect monetary 
orexchange rate policy.
    (xviii) Actions that implement a foreign affairs function of 
theUnited States.
    (xix) Actions (or portions thereof) associated with transfers 
ofland, facilities, title, and real properties through an 
enforceablecontract or lease agreement where the delivery of the deed is 
requiredto occur promptly after a specific, reasonable condition is met, 
suchas promptly after the land is certified as meeting the requirements 
ofCERCLA, and where the Federal agency does not retain 
continuingauthority to control emissions associated with the lands, 
facilities,title, or real properties.
    (xx) Transfers of real property, including land, facilities, 
andrelated personal property from a Federal entity to another 
Federalentity and assignments of real property, including land, 
facilities,and related personal property from a Federal entity to 
another Federalentity for subsequent deeding to eligible applicants.
    (xxi) Actions by the Department of the Treasury to effect 
fiscalpolicy and to exercise the borrowing authority of the United 
States.
    (3) Actions where the emissions are not reasonably foreseeable,such 
as the following:

[[Page 595]]

    (i) Initial Outer Continental Shelf lease sales which aremade on a 
broad scale and are followed by exploration and developmentplans on a 
project level.
    (ii) Electric power marketing activities that involve 
theacquisition, sale and transmission of electric energy.
    (4) Actions which implement a decision to conduct or carry out 
aconforming program such as prescribed burning actions which 
areconsistent with a conforming land management plan.
    (d) Notwithstanding the other requirements of this subpart, 
aconformity determination is not required for the following 
Federalactions (or portion thereof):
    (1) The portion of an action that includes major new or 
modifiedstationary sources that require a permit under the new source 
review(NSR) program (section 173 of the Act) or the prevention 
ofsignificant deterioration program (title I, part C of the Act).
    (2) Actions in response to emergencies or natural disasters suchas 
hurricanes, earthquakes, etc., which are commenced on the order ofhours 
or days after the emergency or disaster and, if applicable,which meet 
the requirements of paragraph (e) of this section.
    (3) Research, investigations, studies, demonstrations, or 
training(other than those exempted under paragraph (c)(2) of this 
section),where no environmental detriment is incurred and/or, the 
particularaction furthers air quality research, as determined by the 
Stateagency primarily responsible for the applicable SIP;
    (4) Alteration and additions of existing structures asspecifically 
required by new or existing applicable environmentallegislation or 
environmental regulations (e.g., hush houses foraircraft engines and 
scrubbers for air emissions).
    (5) Direct emissions from remedial and removal actions carried 
outunder the Comprehensive Environmental Response, Compensation 
andLiability Act and associated regulations to the extent such 
emissionseither comply with the substantive requirements of the PSD/
NSRpermitting program or are exempted from other environmental 
regulationunder the provisions of CERCLA and applicable regulations 
issued underCERCLA.
    (e) Federal actions which are part of a continuing response to 
anemergency or disaster under paragraph (d)(2) of this section and 
whichare to be taken more than 6 months after the commencement of 
theresponse to the emergency or disaster under paragraph (d)(2) of 
thissection are exempt from the requirements of this subpart only if:
    (1) The Federal agency taking the actions makes a 
writtendetermination that, for a specified period not to exceed an 
additional6 months, it is impractical to prepare the conformity analyses 
whichwould otherwise be required and the actions cannot be delayed due 
tooverriding concerns for public health and welfare, national 
securityinterests and foreign policy commitments; or
    (2) For actions which are to be taken after those actions coveredby 
paragraph (e)(1) of this section, the Federal agency makes a 
newdetermination as provided in paragraph (e)(1) of this section.
    (f) Notwithstanding other requirements of this subpart, 
actionsspecified by individual Federal agencies that have met the 
criteriaset forth in either paragraph (g)(1) or (g)(2) of this section 
and theprocedures set forth in paragraph (h) of this section are 
presumed toconform, except as provided in paragraph (j) of this section.
    (g) The Federal agency must meet the criteria for 
establishingactivities that are presumed to conform by fulfilling the 
requirementsset forth in either paragraph (g)(1) or (g)(2) of this 
section:
    (1) The Federal agency must clearly demonstrate using 
methodsconsistent with this subpart that the total of direct and 
indirectemissions from the type of activities which would be presumed 
toconform would not:
    (i) Cause or contribute to any new violation of any standard inany 
area;
    (ii) Interfere with provisions in the applicable SIP formaintenance 
of any standard;
    (iii) Increase the frequency or severity of any existing violationof 
any standard in any area; or

[[Page 596]]

    (iv) Delay timely attainment of any standard or any requiredinterim 
emission reductions or other milestones in any area including,where 
applicable, emission levels specified in the applicable SIP forpurposes 
of:
    (A) A demonstration of reasonable further progress;
    (B) A demonstration of attainment; or
    (C) A maintenance plan; or
    (2) The Federal agency must provide documentation that the totalof 
direct and indirect emissions from such future actions would bebelow the 
emission rates for a conformity determination that areestablished in 
paragraph (b) of this section, based, for example, onsimilar actions 
taken over recent years.
    (h) In addition to meeting the criteria for establishingexemptions 
set forth in paragraphs (g)(1) or (g)(2) of this section,the following 
procedures must also be complied with to presume thatactivities will 
conform:
    (1) The Federal agency must identify through publication in 
theFederal Register its list of proposed activities that arepresumed to 
conform and the basis for the presumptions;
    (2) The Federal agency must notify the appropriate EPA 
RegionalOffice(s), State and local air quality agencies and, where 
applicable,the agency designated under section 174 of the Act and the 
MPO andprovide at least 30 days for the public to comment on the list 
ofproposed activities presumed to conform;
    (3) The Federal agency must document its response to all thecomments 
received and make the comments, response, and final list ofactivities 
available to the public upon request; and
    (4) The Federal agency must publish the final list of suchactivities 
in the Federal Register.
    (i) Notwithstanding the other requirements of this subpart, whenthe 
total of direct and indirect emissions of any pollutant from aFederal 
action does not equal or exceed the rates specified inparagraph (b) of 
this section, but represents 10 percent or more of anonattainment or 
maintenance area's total emissions of that pollutant,the action is 
defined as a regionally significant action and therequirements of Sec. 
93.150 and Sec. Sec. 93.155through 93.160 shall apply for the Federal 
action.
    (j) Where an action otherwise presumed to conform under paragraph(f) 
of this section is a regionally significant action or does not infact 
meet one of the criteria in paragraph (g)(1) of this section,that action 
shall not be presumed to conform and the requirements ofSec. 93.150 and 
Sec. Sec. 93.155 through 93.160shall apply for the Federal action.
    (k) The provisions of this subpart shall apply in allnonattainment 
and maintenance areas.

[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July17, 2006]



Sec. 93.154  Conformity analysis.

    Any Federal department, agency, or instrumentality of the 
Federalgovernment taking an action subject to this subpart must make its 
ownconformity determination consistent with the requirements of 
thissubpart. In making its conformity determination, a Federal agency 
mustconsider comments from any interested parties. Where multiple 
Federalagencies have jurisdiction for various aspects of a project, a 
Federalagency may choose to adopt the analysis of another Federal agency 
ordevelop its own analysis in order to make its conformitydetermination.



Sec. 93.155  Reporting requirements.

    (a) A Federal agency making a conformity determination underSec. 
93.158 must provide to the appropriate EPA RegionalOffice(s), State and 
local air quality agencies and, where applicable,affected Federal land 
managers, the agency designated under section174 of the Act and the MPO 
a 30 day notice which describes theproposed action and the Federal 
agency's draft conformitydetermination on the action.
    (b) A Federal agency must notify the appropriate EPA 
RegionalOffice(s), State and local air quality agencies and, where 
applicable,affected Federal land managers, the agency designated under 
section174 of the Clean Air Act and the MPO within 30 days after making 
afinal conformity determination under Sec. 93.158.

[[Page 597]]



Sec. 93.156  Public participation.

    (a) Upon request by any person regarding a specific Federalaction, a 
Federal agency must make available for review its draftconformity 
determination under Sec. 93.158 with supportingmaterials which describe 
the analytical methods and conclusions reliedupon in making the 
applicability analysis and draft conformitydetermination.
    (b) A Federal agency must make public its draft 
conformitydetermination under Sec. 93.158 by placing a notice 
byprominent advertisement in a daily newspaper of general circulation 
inthe area affected by the action and by providing 30 days for 
writtenpublic comment prior to taking any formal action on the 
draftdetermination. This comment period may be concurrent with any 
otherpublic involvement, such as occurs in the NEPA process.
    (c) A Federal agency must document its response to all thecomments 
received on its draft conformity determination underSec. 93.158 and 
make the comments and responses available,upon request by any person 
regarding a specific Federal action, within30 days of the final 
conformity determination.
    (d) A Federal agency must make public its final 
conformitydetermination under Sec. 93.158 for a Federal action 
byplacing a notice by prominent advertisement in a daily newspaper 
ofgeneral circulation in the area affected by the action within 30 
daysof the final conformity determination.



Sec. 93.157  Frequency of conformity determinations.

    (a) The conformity status of a Federal action automatically lapses5 
years from the date a final conformity determination is reportedunder 
Sec. 93.155, unless the Federal action has beencompleted or a 
continuous program has been commenced to implement thatFederal action 
within a reasonable time.
    (b) Ongoing Federal activities at a given site showing 
continuousprogress are not new actions and do not require 
periodicredeterminations so long as such activities are within the scope 
ofthe final conformity determination reported underSec. 93.155.
    (c) If, after the conformity determination is made, the 
Federalaction is changed so that there is an increase in the total of 
directand indirect emissions, above the levels in Sec. 93.153(b),a new 
conformity determination is required.



Sec. 93.158  Criteria for determining conformity of general Federal actions.

    (a) An action required under Sec. 93.153 to have aconformity 
determination for a specific pollutant, will be determinedto conform to 
the applicable SIP if, for each pollutant that exceedsthe rates in Sec. 
93.153(b), or otherwise requires aconformity determination due to the 
total of direct and indirectemissions from the action, the action meets 
the requirements ofparagraph (c) of this section, and meets any of the 
followingrequirements:
    (1) For any criteria pollutant, the total of direct and 
indirectemissions from the action are specifically identified and 
accountedfor in the applicable SIP's attainment or maintenance 
demonstration;
    (2) For ozone or nitrogen dioxide, the total of direct andindirect 
emissions from the action are fully offset within the samenonattainment 
or maintenance area through a revision to the applicableSIP or a 
similarly enforceable measure that effects emissionreductions so that 
there is no net increase in emissions of thatpollutant;
    (3) For any criteria pollutant, except ozone and nitrogen 
dioxide,the total of direct and indirect emissions from the action meet 
therequirements:
    (i) Specified in paragraph (b) of this section, based on areawideair 
quality modeling analysis and local air quality modeling analysis;or
    (ii) Meet the requirements of paragraph (a)(5) of this sectionand, 
for local air quality modeling analysis, the requirement ofparagraph (b) 
of this section;
    (4) For CO or PM-10--
    (i) Where the State agency primarily responsible for theapplicable 
SIP determines that an areawide air quality modelinganalysis is not 
needed, the total of direct and indirect emissionsfrom the action meet 
the requirements

[[Page 598]]

specified in paragraph (b)of this section, based on local air quality 
modeling analysis; or
    (ii) Where the State agency primarily responsible for theapplicable 
SIP determines that an areawide air quality modelinganalysis is 
appropriate and that a local air quality modeling analysisis not needed, 
the total of direct and indirect emissions from theaction meet the 
requirements specified in paragraph (b) of thissection, based on 
areawide modeling, or meet the requirements ofparagraph (a)(5) of this 
section; or
    (5) For ozone or nitrogen dioxide, and for purposes of 
paragraphs(a)(3)(11) and (a)(4)(ii) of this section, each portion of the 
actionor the action as a whole meets any of the following requirements:
    (i) Where EPA has approved a revision to an area's attainment 
ormaintenance demonstration after 1990 and the State makes 
adetermination as provided in paragraph (a)(5)(i)(A) of this section 
orwhere the State makes a commitment as provided in paragraph 
(a)(5)(i)(B) of this section:
    (A) The total of direct and indirect emissions from the action 
(orportion thereof) is determined and documented by the State 
agencyprimarily responsible for the applicable SIP to result in a level 
ofemissions which, together with all other emissions in thenonattainment 
(or maintenance) area, would not exceed the emissionsbudgets specified 
in the applicable SIP;
    (B) The total of direct and indirect emissions from the action 
(orportion thereof) is determined by the State agency responsible for 
theapplicable SIP to result in a level of emissions which, together 
withall other emissions in the nonattainment (or maintenance) area, 
wouldexceed an emissions budget specified in the applicable SIP and 
theState Governor or the Governor's designee for SIP actions makes 
awritten commitment to EPA which includes the following:
    (1) A specific schedule for adoption and submittal of arevision to 
the SIP which would achieve the needed emission reductionsprior to the 
time emissions from the Federal action would occur;
    (2) Identification of specific measures for incorporationinto the 
SIP which would result in a level of emissions which,together with all 
other emissions in the nonattainment or maintenancearea, would not 
exceed any emissions budget specified in theapplicable SIP;
    (3) A demonstration that all existing applicable SIPrequirements are 
being implemented in the area for the pollutantsaffected by the Federal 
action, and that local authority to implementadditional requirements has 
been fully pursued;
    (4) A determination that the responsible Federal agencieshave 
required all reasonable mitigation measures associated with theiraction; 
and
    (5) Written documentation including all air quality 
analysessupporting the conformity determination;
    (C) Where a Federal agency made a conformity determination basedon a 
State commitment under paragraph (a)(5)(i)(B) of this section,such a 
State commitment is automatically deemed a call for a SIPrevision by EPA 
under section 110(k)(5) of the Act, effective on thedate of the Federal 
conformity determination and requiring responsewithin 18 months or any 
shorter time within which the State commits torevise the applicable SIP;
    (ii) The action (or portion thereof), as determined by the MPO, 
isspecifically included in a current transportation plan 
andtransportation improvement program which have been found to conform 
tothe applicable SIP under 40 CFR part 51, subpart T, or 40 CFR part 
93,subpart A;
    (iii) The action (or portion thereof) fully offsets its 
emissionswithin the same nonattainment or maintenance area through a 
revisionto the applicable SIP or an equally enforceable measure that 
effectsemission reductions equal to or greater than the total of direct 
andindirect emissions from the action so that there is no net increase 
inemissions of that pollutant;
    (iv) Where EPA has not approved a revision to the relevant 
SIPattainment or maintenance demonstration since 1990, the total 
ofdirect and indirect emissions from the action for the future 
years(described in Sec. 93.159(d) do

[[Page 599]]

not increase emissionswith respect to the baseline emissions:
    (A) The baseline emissions reflect the historical activity 
levelsthat occurred in the geographic area affected by the proposed 
Federalaction during:
    (1) Calendar year 1990;
    (2) The calendar year that is the basis for theclassification (or, 
where the classification is based on multipleyears, the most 
representative year), if a classification ispromulgated in 40 CFR part 
81; or
    (3) The year of the baseline inventory in the PM-10applicable SIP;
    (B) The baseline emissions are the total of direct and 
indirectemissions calculated for the future years (described inSec. 
93.159(d)) using the historic activity levels(described in paragraph 
(a)(5)(iv)(A) of this section) and appropriateemission factors for the 
future years; or
    (v) Where the action involves regional water and/or 
wastewaterprojects, such projects are sized to meet only the needs of 
populationprojections that are in the applicable SIP.
    (b) The areawide and/or local air quality modeling analyses must:
    (1) Meet the requirements in Sec. 93.159; and
    (2) Show that the action does not:
    (i) Cause or contribute to any new violation of any standard inany 
area; or
    (ii) Increase the frequency or severity of any existing violationof 
any standard in any area.
    (c) Notwithstanding any other requirements of this section, anaction 
subject to this subpart may not be determined to conform to 
theapplicable SIP unless the total of direct and indirect emissions 
fromthe action is in compliance or consistent with all 
relevantrequirements and milestones contained in the applicable SIP, 
such aselements identified as part of the reasonable further 
progressschedules, assumptions specified in the attainment or 
maintenancedemonstration, prohibitions, numerical emission limits, and 
workpractice requirements.
    (d) Any analyses required under this section must be completed,and 
any mitigation requirements necessary for a finding of conformitymust be 
identified before the determination of conformity is made.



Sec. 93.159  Procedures for conformity determinations of general Federalactions.

    (a) The analyses required under this subpart must be based on 
thelatest planning assumptions.
    (1) All planning assumptions must be derived from the estimates 
ofpopulation, employment, travel, and congestion most recently 
approvedby the MPO, or other agency authorized to make such estimates, 
whereavailable.
    (2) Any revisions to these estimates used as part of theconformity 
determination, including projected shifts in geographiclocation or level 
of population, employment, travel, and congestion,must be approved by 
the MPO or other agency authorized to make suchestimates for the urban 
area.
    (b) The analyses required under this subpart must be based on 
thelatest and most accurate emission estimation techniques available 
asdescribed below, unless such techniques are inappropriate. If 
suchtechniques are inappropriate and written approval of the EPA 
RegionalAdministrator is obtained for any modification or substitution, 
theymay be modified or another technique substituted on a case-by-
casebasis or, where appropriate, on a generic basis for a specific 
Federalagency program.
    (1) For motor vehicle emissions, the most current version of 
themotor vehicle emissions model specified by EPA and available for 
usein the preparation or revision of SIPs in that State must be used 
forthe conformity analysis as specified in paragraphs (b)(1)(i) and 
(ii)of this section:
    (i) The EPA must publish in the Federal Register a notice 
ofavailability of any new motor vehicle emissions model; and
    (ii) A grace period of 3 months shall apply during which the 
motorvehicle emissions model previously specified by EPA as the 
mostcurrent version may be used. Conformity analyses for which 
theanalysis was begun during the grace period or no more than 3 
yearsbefore the Federal Register notice of availability of the 
latestemission model may continue to use the

[[Page 600]]

previous version of themodel specified by EPA.
    (2) For non-motor vehicle sources, including stationary and 
areasource emissions, the latest emission factors specified by EPA in 
the``Compilation of Air Pollutant Emission Factors (AP-42)'' \1\ must be 
used for the conformity analysis unlessmore accurate emission data are 
available, such as actual stack testdata from stationary sources which 
are part of the conformityanalysis.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Technical SupportDivision of 
OAQPS, EPA, MD-14, Research Triangle Park, NC27711.
---------------------------------------------------------------------------

    (c) The air quality modeling analyses required under this 
subpartmust be based on the applicable air quality models, data bases, 
andother requirements specified in the most recent version of 
the``Guideline on Air Quality Models (Revised)'' (1986),including 
supplements (EPA publication no.450/2-78-027R) \2\, unless:
---------------------------------------------------------------------------

    \2\ See footnote 1 at Sec. 93.159(b)(2).
---------------------------------------------------------------------------

    (1) The guideline techniques are inappropriate, in which case 
themodel may be modified or another model substituted on a case-by-
casebasis or, where appropriate, on a generic basis for a specific 
Federalagency program; and
    (2) Written approval of the EPA Regional Administrator is 
obtainedfor any modification or substitution.
    (d) The analyses required under this subpart, exceptSec. 
93.158(a)(1), must be based on the total of direct andindirect emissions 
from the action and must reflect emission scenariosthat are expected to 
occur under each of the following cases:
    (1) The Act mandated attainment year or, if applicable, thefarthest 
year for which emissions are projected in the maintenanceplan;
    (2) The year during which the total of direct and indirectemissions 
from the action is expected to be the greatest on an annualbasis; and
    (3) Any year for which the applicable SIP specifies an 
emissionsbudget.



Sec. 93.160  Mitigation of air quality impacts.

    (a) Any measures that are intended to mitigate air quality 
impactsmust be identified and the process for implementation and 
enforcementof such measures must be described, including an 
implementationschedule containing explicit timelines for implementation.
    (b) Prior to determining that a Federal action is in conformity,the 
Federal agency making the conformity determination must obtainwritten 
commitments from the appropriate persons or agencies toimplement any 
mitigation measures which are identified as conditionsfor making 
conformity determinations.
    (c) Persons or agencies voluntarily committing to mitigationmeasures 
to facilitate positive conformity determinations must complywith the 
obligations of such commitments.
    (d) In instances where the Federal agency is licensing, permittingor 
otherwise approving the action of another governmental or privateentity, 
approval by the Federal agency must be conditioned on theother entity 
meeting the mitigation measures set forth in theconformity 
determination.
    (e) When necessary because of changed circumstances, 
mitigationmeasures may be modified so long as the new mitigation 
measurescontinue to support the conformity determination. Any proposed 
changein the mitigation measures is subject to the reporting 
requirements ofSec. 93.156 and the public participation requirements 
ofSec. 93.157.
    (f) The implementation plan revision required inSec. 93.151 shall 
provide that written commitments tomitigation measures must be obtained 
prior to a positive conformitydetermination and that such commitments 
must be fulfilled.
    (g) After a State revises its SIP to adopt its general 
conformityrules and EPA approves that SIP revision, any agreements, 
includingmitigation measures, necessary for a conformity determination 
will beboth State and federally enforceable. Enforceability through 
theapplicable SIP will apply to all persons who agree to mitigate 
directand indirect emissions associated with a Federal action for 
aconformity determination.

[[Page 601]]



PART 94_CONTROL OF EMISSIONS FROM MARINECOMPRESSION-IGNITION ENGINES--Table of Contents




  Subpart A_General Provisions for Emission Regulations forCompression-
                         Ignition Marine Engines

Sec.
94.1 Applicability.
94.2 Definitions.
94.3 Abbreviations.
94.4 Treatment of confidential information.
94.5 Reference materials.
94.6 Regulatory structure.
94.7 General standards and requirements.
94.8 Exhaust emission standards.
94.9 Compliance with emission standards.
94.10 Warranty period.
94.11 Requirements for rebuilding certified engines.
94.12 Interim provisions.

                        Subpart B_Test Procedures

94.101 Applicability.
94.102 General provisions.
94.103 Test procedures for Category 1 marine engines.
94.104 Test procedures for Category 2 marine engines.
94.105 Duty cycles.
94.106 Supplemental test procedures for Category 1 andCategory 2 marine 
          engines.
94.107 Determination of maximum test speed.
94.108 Test fuels.
94.109 Test procedures for Category 3 marine engines.

                   Subpart C_Certification Provisions

94.201 Applicability.
94.202 Definitions.
94.203 Application for certification.
94.204 Designation of engine families.
94.205 Prohibited controls, adjustable parameters.
94.206 Required information.
94.207 Special test procedures.
94.208 Certification.
94.209 Special provisions for post-manufacture marinizersand small-
          volume manufacturers.
94.210 Amending theapplication and certificate of conformity.
94.211 Emission-related maintenance instructions forpurchasers.
94.212 Labeling.
94.213 Submission of engine identification numbers.
94.214 Production engines.
94.215 Maintenance of records; submittal of information;right of entry.
94.216 Hearing procedures.
94.217 Emission data engine selection.
94.218 Deterioration factor determination.
94.219 Durability data engine selection.
94.220 Service accumulation.
94.221 Application of good engineering judgment.
94.222 Certification of engines on imported vessels.

    Subpart D_Certification Averaging, Banking, and TradingProvisions

94.301 Applicability.
94.302 Definitions.
94.303 General provisions.
94.304 Compliance requirements.
94.305 Credit generation and use calculation.
94.306 Certification.
94.307 Labeling.
94.308 Maintenance of records.
94.309 Reports.
94.310 Notice of opportunity for hearing.

   Subpart E_Emission-related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program

94.401 Applicability.
94.402 Definitions.
94.403 Emission defect information report.
94.404 Voluntary emissions recall reporting.
94.405 Alternative report formats.
94.406 Reports filing: record retention.
94.407 Responsibility under other legal provisionspreserved.
94.408 Disclaimer of production warranty applicability.

         Subpart F_Manufacturer Production Line Testing Programs

94.501 Applicability.
94.502 Definitions.
94.503 General requirements.
94.504 Right of entry and access.
94.505 Sample selection for testing.
94.506 Test procedures.
94.507 Sequence of testing.
94.508 Calculation and reporting of test results.
94.509 Maintenance of records; submittal of information.
94.510 Compliance with criteria for production line testing.
94.511 [Reserved]
94.512 Suspension and revocation of certificates ofconformity.
94.513 Request for public hearing.
94.514 Administrative procedures for public hearing.
94.515 Hearing procedures.
94.516 Appeal of hearing decision.
94.517 Treatment of confidential information.

Subpart G [Reserved]

[[Page 602]]

                      Subpart H_Recall Regulations

94.701 Applicability.
94.702 Definitions.
94.703 Applicability of 40 CFR Part 85, Subpart S.

             Subpart I_Importation of Nonconforming Engines

94.801 Applicability.
94.802 Definitions.
94.803 Admission.
94.804 Exemptions.
94.805 Prohibited acts; penalties.
94.806 Importation of partially complete engines.

              Subpart J_Exclusion and Exemption Provisions

94.901 Purpose and applicability.
94.902 Definitions.
94.903 Exclusions.
94.904 Exemptions.
94.905 Testing exemption.
94.906 Manufacturer-owned exemption, display exemption, andcompetition 
          exemption.
94.907 Engine dressing exemption.
94.908 National security exemption.
94.909 Export exemptions.
94.910 Granting of exemptions.
94.911 Submission of exemption requests.
94.912 Optional certification to land-based standards forauxiliary 
          marine engines.
94.913 Staged-assembly exemption.
94.914 Emergency vessel exemption.

 Subpart K_Requirements Applicable to Vessel Manufacturers,Owners, and 
                                Operators

94.1001 Applicability.
94.1002 Definitions.
94.1003 Production testing, in-use testing, and inspections.
94.1004 Maintenance, repair adjustment, and recordkeeping.

       Subpart L_General Enforcement Provisions and ProhibitedActs

94.1101 Applicability.
94.1102 Definitions.
94.1103 Prohibited acts.
94.1104 General enforcement provisions.
94.1105 Injunction proceedings for prohibited acts.
94.1106 Penalties.
94.1107 Warranty provisions.
94.1108 In-use compliance provisions.

Appendix I to Part 94--Emission-Related EngineParameters and 
          Specifications.

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

    Source: 64 FR 73331, Dec. 29, 1999, unless otherwisenoted.



  Subpart A_General Provisions for Emission Regulations forCompression-
                         Ignition Marine Engines



Sec. 94.1  Applicability.

    (a) Except as noted in paragraphs (b) and (c) of this section, 
theprovisions of this part apply to manufacturers (including post-
manufacture marinizers and dressers), rebuilders, owners and 
operatorsof:
    (1) Marine engines that are compression-ignition enginesmanufactured 
(or that otherwise become new) on or after January 1,2004;
    (2) Marine vessels manufactured (or that otherwise become new) onor 
after January 1, 2004 and which include a compression-ignitionmarine 
engine.
    (b) Notwithstanding the provision of paragraph (c) of thissection, 
the requirements and prohibitions of this part do not applywith respect 
to the engines identified in paragraphs (a)(1) and (2) ofthis section 
where such engines are:
    (1) Marine engines with rated power below 37 kW; or
    (2) Marine engines on foreign vessels.
    (c) The provisions of Subpart L of this part apply to everyonewith 
respect to the engines identified in paragraph (a) of thissection.
    (d) This part applies as specified in 40 CFR part 60, subpartIIII, 
to compression-ignition engines subject to the standards of 40CFR part 
60, subpart IIII.

[67 FR 68341, Nov. 8, 2002, as amended at 68 FR 9780, Feb. 28,2003; 71 
FR 39184, July 11, 2006]

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.1 was 
amended by revising paragraph (b), effectiveJuly 7, 2008. For the 
convenience of the user, the revised text is setforth as follows:



Sec. 94.1  Applicability.

                                * * * * *

    (b) Notwithstanding the provisions of paragraph (c) of thissection, 
the requirements and prohibitions of this part do not applywith respect 
to the engines identified in

[[Page 603]]

paragraphs (a)(1) and(2) of this section for any of the following 
engines:
    (1) Marine engines with rated power below 37 kW.
    (2) Marine engines on foreign vessels.
    (3) Marine engines subject to the standards of 40 CFR part 1042.

                                * * * * *



Sec. 94.2  Definitions.

    (a) The definitions of this section apply to this subpart. Theyalso 
apply to all subparts of this part, except where noted otherwise.
    (b) As used in this part, all terms not defined in this sectionshall 
have the meaning given them in the Act:Act means the Clean Air Act as 
amended (42 U.S.C. 7401 etseq.).
    Adjustable Parameter means any device, system, or element ofdesign 
which is physically or electronically capable of being 
adjusted(including those which are difficult to access) and which, 
ifadjusted, may affect emissions or engine performance during 
emissiontesting.
    Administrator means the Administrator of the EnvironmentalProtection 
Agency or his/her authorized representative.
    Aftertreatment system or aftertreatment component oraftertreatment 
technology means any system or component ortechnology mounted downstream 
of the exhaust valve or exhaust portwhose design function is to reduce 
exhaust emissions.
    Amphibious vehicle means a vehicle with wheels or tracksthat is 
designed primarily for operation on land and secondarily foroperation in 
water.
    Annex VI Technical Code means the ``Technical Code onControl of 
Emission of Nitrogen Oxides from Marine DieselEngines,'' adopted by the 
International Maritime Organization(incorporated by reference in Sec. 
94.5).
    Applicable standard means a standard to which an engine issubject; 
or, where an engine is certified to another standard or FEL,applicable 
standard means the other standard or FEL to which theengine is 
certified, as allowed by Sec. 94.8. Thisdefinition does not apply to 
subpart D of this part.
    Auxiliary emission control device (AECD) means any elementof design 
which senses temperature, vessel speed, engine RPM,atmospheric pressure, 
manifold pressure or vacuum, or any otherparameter for the purpose of 
activating, modulating, delaying, ordeactivating the operation of any 
part of the emission control system(including, but not limited to 
injection timing); or any other featurethat causes in-use emissions to 
be higher than those measured undertest conditions.
    Averaging means the exchange of emission credits amongengine 
families within a given manufacturer's product line.
    Banking means the retention of emission credits by a creditholder 
for use in future calendar year averaging or trading aspermitted by the 
regulations in this part.
    Base engine means a land-based engine to be marinized, asconfigured 
prior to marinization.
    Blue Sky Series engine means an engine meeting therequirements of 
Sec. 94.7(e).
    Brake-specific fuel consumption means the mass of fuelconsumed by an 
engine during a test segment divided by the brake-poweroutput of the 
engine during that same test segment.
    Calibration means the set of specifications, includingtolerances, 
specific to a particular design, version, or applicationof a component, 
or components, or assembly capable of functionallydescribing its 
operation over its working range.
    Category 1 means relating to a marine engine with a ratedpower 
greater than or equal to 37 kilowatts and a specific enginedisplacement 
less than 5.0 liters per cylinder.
    Category 2 means relating to a marine engine with a specificengine 
displacement greater than or equal to 5.0 liters per cylinderbut less 
than 30 liters per cylinder.
    Category 3 means relating to a marine engine with a specificengine 
displacement greater than or equal to 30 liters per cylinder.
    Commercial means relating to an engine or vessel that is nota 
recreational marine engine or a recreational vessel.
    Compliance date means the date on which compliance with astandard 
becomes mandatory. For example, the compliance date forstandards which

[[Page 604]]

first apply to the 2004 model year, is January 1,2004.
    Compression-ignition means relating to an engine that is nota spark-
ignition engine.
    Configuration means any subclassification of an enginefamily which 
can be described on the basis of gross power, emissioncontrol system, 
governed speed, injector size, engine calibration, andother parameters 
as designated by the Administrator.
    Constant-speed engine means an engine that is governed tooperate 
only at a single rated speed.
    Crankcase emissions means airborne substances emitted to 
theatmosphere from any portion of the engine crankcase ventilation 
orengine lubrication system.
    Defeat device means an AECD or other control feature thatreduces the 
effectiveness of the emission control system underconditions which may 
reasonably be expected to be encountered innormal engine operation and 
use, unless the AECD or other controlfeature has been identified by the 
manufacturer in the application forcertification, and:
    (1) Such conditions are substantially represented by the portionof 
the applicable duty cycle of Sec. 94.105 during which theapplicable 
emission rates are measured;
    (2) The need for the AECD or other control feature is justified 
interms of protecting the engine or vessel against damage or accident;or
    (3) The AECD or other control feature does not go beyond 
therequirements of engine starting.
    Designated Officer means the Manager of the Engine ProgramsGroup 
(6405-J), U.S. Environmental Protection Agency, 1200Pennsylvania Ave., 
Washington, DC 20460.
    Deterioration factor means the difference between exhaustemissions 
at the end of useful life and exhaust emissions at the lowhour test 
point expressed as either: the ratio of exhaust emissions atthe end of 
useful life to exhaust emissions at the low hour test point(for 
multiplicative deterioration factors); or the difference betweenexhaust 
emissions at the end of useful life and exhaust emissions atthe low hour 
test point (for additive deterioration factors).
    Diesel fuel means any fuel suitable for use in dieselengines which 
is commonly or commercially known or sold as diesel fuelor marine 
distillate fuel.
    Dresser means any entity that modifies a land-based enginefor use in 
a marine vessel, in compliance with the provisions ofSec. 94.907. This 
means that dressers may not modify theengine in a way that would affect 
emissions.
    Emission control system means those devices, systems orelements of 
design which control or reduce the emission of substancesfrom an engine. 
This includes, but is not limited to, mechanical andelectronic 
components and controls, and computer software.
    Emission credits means the amount of emission reduction 
orexceedance, by an engine family, below or above the emission 
standard,respectively, as calculated under subpart D of this part. 
Emissionreductions below the standard are considered as 
``positivecredits,'' while emission exceedances above the standard 
areconsidered as ``negative credits.'' In addition,``projected credits'' 
refer to emission credits based onthe projected applicable production/
sales volume of the engine family.``Reserved credits'' are emission 
credits generated withina calendar year waiting to be reported to EPA at 
the end of thecalendar year. ``Actual credits'' refer to emissioncredits 
based on actual applicable production/sales volume ascontained in the 
end-of-year reports submitted to EPA.
    Emission-data engine means an engine which is tested forpurposes of 
emission certification or production line testing.
    Emission-related defect means a defect in design, materials,or 
workmanship in a device, system, or assembly which affects anyparameter 
or specification enumerated in Appendix I of this part.
    Emission-related maintenance means that maintenance 
whichsubstantially affects emissions or which is likely to affect 
thedeterioration of the engine or vessel with respect to emissions.
    Engine family means a group of engine configurations thatare 
expected to have similar emission characteristics throughout theuseful 
lives of the engines (see Sec. 94.204), and that are(or

[[Page 605]]

were) covered (or requested to be covered) by a specificcertificate of 
conformity.
    Engineering analysis means a summary of scientific and/orengineering 
principles and facts that support a conclusion made by amanufacturer, 
with respect to compliance with the provisions of thispart.
    EPA Enforcement Officer means any officer or employee of 
theEnvironmental Protection Agency so designated in writing by 
theAdministrator or his/her designee.
    Exhaust emissions means substances (i.e., gases andparticles) 
emitted to the atmosphere from any opening downstream fromthe exhaust 
port or exhaust valve of an engine.
    Exhaust gas recirculation means an emission controltechnology that 
reduces emissions by routing gases that had beenexhausted from the 
combustion chamber(s) back into the engine to bemixed with incoming air 
prior to or during combustion. The use ofvalve timing to increase the 
amount of residual exhaust gas in thecombustion chamber(s) that is mixed 
with incoming air prior to orduring combustion is not considered to be 
exhaust gas recirculationfor the purposes of this part.
    Family Emission Limit (FEL) means an emission level declaredby the 
certifying manufacturer to serve in lieu of an otherwiseapplicable 
emission standard for certification and compliance purposesin the 
averaging, banking and trading program. FELs are expressed tothe same 
number of decimal places as the applicable emission standard.
    Foreign vessel means a vessel of foreign registry or avessel 
operated under the authority of a country other than the UnitedStates.
    Fuel system means the combination of fuel tank(s), fuelpump(s), fuel 
lines and filters, pressure regulator(s), and fuelinjection components, 
fuel system vents, and any other componentinvolved in the delivery of 
fuel to the engine.
    Green Engine Factor means a factor that is applied toemission 
measurements from an engine that has had little or no 
serviceaccumulation. The Green Engine Factor adjusts emission 
measurements tobe equivalent to emission measurements from an engine 
that has hadapproximately 300 hours of use.
    Hydrocarbon standard means an emission standard for 
totalhydrocarbons, nonmethane hydrocarbons, or total 
hydrocarbonequivalent; or a combined emission standard for 
NOX andtotal hydrocarbons, nonmethane hydrocarbons, or total 
hydrocarbonequivalent.
    Identification number means a specification (for example,model 
number/serial number combination) which allows a particularengine to be 
distinguished from other similar engines.
    Importer means an entity or person who imports engines froma foreign 
country into the United States (including its territories).
    Intermediate Speed means peak torque speed if peak torquespeed 
occurs from 60 to 75 percent of maximum test speed. If peaktorque speed 
is less than 60 percent of maximum test speed,intermediate speed means 
60 percent of maximum test speed. If peaktorque speed is greater than 75 
percent of maximum test speed,intermediate speed means 75 percent of 
maximum test speed.
    Low hour engine means an engine during the interval betweenthe time 
that normal assembly operations and adjustments are completedand the 
time that 300 additional operating hours have been accumulated(including 
hours of operation accumulated during emission testing, ifperformed).
    Malfunction means a condition in which the operation of acomponent 
in an engine occurs in a manner other than that specified bythe 
certifying manufacturer (e.g., as specified in the application 
forcertification); or the operation of an engine in that condition.
    Manufacturer means any person engaged in the manufacturingor 
assembling of new engines or importing such engines for resale, orwho 
acts for and is under the control of any such person in connectionwith 
the distribution of such engines. The term manufacturer includespost-
manufacturer marinizers, but does not include any dealer withrespect to 
new engines received by such person in commerce.

[[Page 606]]

    Manufacturer-owned engine means an uncertified marineengine that is 
owned and controlled by a manufacturer, is used forproduct development, 
and is not sold or leased.
    Marine engine means a nonroad engine that is installed orintended to 
be installed on a marine vessel. This includes a portableauxiliary 
marine engine only if its fueling, cooling, or exhaustsystem is an 
integral part of the vessel. There are two kinds ofmarine engines:
    (1) Propulsion marine engine means a marine engine that moves 
avessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used 
forpropulsion.
    Marine vessel has the meaning given in 1 U.S.C. 3, exceptthat it 
does not include amphibious vehicles. The definition in 1U.S.C. 3 very 
broadly includes every craft capable of being used as ameans of 
transportation on water.
    Maximum Test Power means:
    (1) For Category 1 engines, the power output observed at themaximum 
test speed with the maximum fueling rate possible.
    (2) For Category 2 engines, 90 percent of the power outputobserved 
at the maximum test speed with the maximum fueling ratepossible.
    Maximum test speed means the engine speed defined bySec. 94.107 to 
be the maximum engine speed to use duringtesting.
    Maximum Test Torque means the torque output observed at thetest 
speed with the maximum fueling rate possible at that speed.
    Method of aspiration means the method whereby air for fuelcombustion 
enters the engine (e.g., naturally aspirated orturbocharged).
    Model year means the manufacturer's annual new modelproduction 
period which includes January 1 of the calendar year, endsno later than 
December 31 of the calendar year, and does not beginearlier than January 
2 of the previous calendar year. Where amanufacturer has no annual new 
model production period, model yearmeans calendar year.
    New marine engine means:
    (1)(i) A marine engine, the equitable or legal title to which 
hasnever been transferred to an ultimate purchaser;
    (ii) A marine engine installed on a vessel, the equitable or 
legaltitle to such vessel has never been transferred to an 
ultimatepurchaser; or
    (iii) A marine engine that has not been placed into service on 
avessel.
    (2) Where the equitable or legal title to an engine or vessel isnot 
transferred to an ultimate purchaser prior to its being placedinto 
service, the engine ceases to be new after it is placed intoservice.
    (3) With respect to imported engines, the term ``new marineengine'' 
means an engine that is not covered by a certificate ofconformity under 
this part at the time of importation, and that wasmanufactured after the 
starting date of the emission standards in thispart which are applicable 
to such engine (or which would be applicableto such engine had it been 
manufactured for importation into theUnited States).
    New vessel means:
    (1)(i) A vessel, the equitable or legal title to which has neverbeen 
transferred to an ultimate purchaser; or
    (ii) For vessels with no Category 3 engines, a vessel that hasbeen 
modified such that the value of the modifications exceeds 50percent of 
the value of the modified vessel. The value of themodification is the 
difference in the assessed value of the vesselbefore the modification 
and the assessed value of the vessel after themodification. Use the 
following equation to determine if thefractional value of the 
modification exceeds 50 percent:

Percent of value = [(Value after modification)-(Valuebefore 
    modification)] x 100% (Value after modification)

    (iii) For vessels with Category 3 engines, a vessel that 
hasundergone a modification, which:
    (A) Substantially alters the dimensions or carrying capacity ofthe 
vessel; or
    (B) Changes the type of vessel; or
    (C) Substantially prolongs the vessel's life.
    (2) Where the equitable or legal title to a vessel is nottransferred 
to an ultimate purchaser prior to its being

[[Page 607]]

placedinto service, the vessel ceases to be new when it is placed 
intoservice.
    Nonconforming marine engine means a marine engine which isnot 
covered by a certificate of conformity prior to importation orbeing 
offered for importation (or for which such coverage has not 
beenadequately demonstrated to EPA); or a marine engine which 
wasoriginally covered by a certificate of conformity, but which is not 
ina certified configuration, or otherwise does not comply with 
theconditions of that certificate of conformity.

    Note: This definition does not include domestic marineengines which 
are not covered by a certificate of conformity prior totheir 
introduction into U.S. commerce; such engines are considered tobe 
``noncomplying marine engines.''

    Oxides of nitrogen means nitric oxide and nitrogen dioxide.Oxides of 
nitrogen are expressed quantitatively as if the nitric oxidewere in the 
form of nitrogen dioxide (oxides of nitrogen are assumedto have a 
molecular weight equivalent to nitrogen dioxide).
    Passenger has the meaning given by 46 U.S.C. 2101 (21) and(21a). In 
the context of commercial vessels, this generally means thata passenger 
is a person that pays to be on the vessel.
    Post-manufacture marinizer means an entity that produces amarine 
engine by modifying a non-marine engine, whether certified 
oruncertified, complete or partially complete, where such entity is 
notcontrolled by the manufacturer of the base engine or by an entity 
thatalso controls the manufacturer of the base engine. In addition, 
vesselmanufacturers that substantially modify marine engines are post-
manufacture marinizers. For the purpose of this 
definition,``substantially modify'' means changing an engine in a 
waythat could change engine emission characteristics.
    Presentation of credentials means the display of thedocument 
designating a person as an EPA enforcement officer.
    Primary fuel means that type of fuel (e.g., petroleumdistillate 
diesel fuel) that is expected to be consumed in thegreatest quantity 
(volume basis) when the engine is operated in use.
    Recreational marine engine means a Category 1 propulsionmarine 
engine that is intended by the manufacturer to be installed ona 
recreational vessel, and which is permanently labeled as follows:``THIS 
ENGINE IS CATEGORIZED AS A RECREATIONAL MARINE ENGINEUNDER 40 CFR PART 
94. INSTALLATION OF THIS ENGINE IN ANYNONRECREATIONAL VESSEL IS A 
VIOLATION OF FEDERAL LAW SUBJECT TO CIVILPENALTY.''.
    Recreational vessel has the meaning given in 46 U.S.C. 2101(25), but 
excludes ``passenger vessels'' and ``smallpassenger vessels'' as defined 
by 46 U.S.C. 2101 (22) and (35)and excludes vessels used solely for 
competition. In general, for thispart, ``recreational vessel'' means a 
vessel that isintended by the vessel manufacturer to be operated 
primarily forpleasure or leased, rented or chartered to another for the 
latter'spleasure, excluding the following vessels:
    (1) Vessels of less than 100 gross tons that carry more than 
6passengers (as defined in this section).
    (2) Vessels of 100 gross tons or more that carry one or 
morepassengers (as defined in this section).
    (3) Vessels used solely for competition.
    Residual fuel means a petroleum product containing theheavier 
compounds that remain after the distillate fuel oils(e.g., diesel fuel 
and marine distillate fuel) and lighterhydrocarbons are distilled away 
in refinery operations.
    Round means to round numbers according to ASTM E29-02(incorporated 
by reference in Sec. 94.5), unless otherwisespecified.
    Service life means the total life of an engine. Service lifebegins 
when the engine is originally manufactured and continues untilthe engine 
is permanently removed from service.
    Specific emissions means emissions expressed on the basis ofobserved 
brake power, using units of g/kW-hr. Observed brake powermeasurement 
includes accessories on the engine if these accessoriesare required for 
running an emission test (except for the coolingfan). When it is not 
possible to test the engine in the grossconditions, for example if the 
engine and transmission form a singleintegral unit, the engine may be 
tested in the net condition. Power

[[Page 608]]

corrections from net to gross conditions will be allowed withprior 
approval of the Administrator.
    Small-volume boat builder means a boat manufacturer withfewer than 
500 employees and with annual U.S.-directed production offewer than 100 
boats. For manufacturers owned by a parent company,these limits apply to 
the combined production and number of employeesof the parent company and 
all its subsidiaries.
    Small-volume manufacturer means a manufacturer with annualU.S.-
directed production of fewer than 1,000 internal combustionengines 
(marine and nonmarine). For manufacturers owned by a parentcompany, the 
limit applies to the production of the parent company andall its 
subsidiaries.
    Spark-ignition means relating to a gasoline-fueled engine orother 
engines with a spark plug (or other sparking device) and withoperating 
characteristics significantly similar to the theoreticalOtto combustion 
cycle. Spark-ignition engines usually use a throttleto regulate intake 
air flow to control power during normal operation.
    Specified by a certificate of conformity or specified ina 
certificate of conformity means stated or otherwise specified ina 
certificate of conformity or an approved application forcertification.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines or vesselsselected from 
the population of an engine family for emission testing.
    Tier 1 means relating to an engine subject to the Tier 1emission 
standards listed in Sec. 94.8.
    Tier 2 means relating to an engine subject to the Tier 2emission 
standards listed in Sec. 94.8.
    Total Hydrocarbon Equivalent means the sum of the carbonmass 
contributions of non-oxygenated hydrocarbons, alcohols andaldehydes, or 
other organic compounds that are measured separately ascontained in a 
gas sample, expressed as petroleum-fueled enginehydrocarbons. The 
hydrogen-to-carbon ratio of the equivalenthydrocarbon is 1.85:1.
    Trading means the exchange of engine emission creditsbetween credit 
holders.
    Ultimate Purchaser means, with respect to any new engine orvessel, 
the first person who in good faith purchases such new engineor vessel 
for purposes other than resale.
    United States means the States, the District of Columbia,the 
Commonwealth of Puerto Rico, the Commonwealth of the NorthernMariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    U.S.-directed production volume means the number of marineengine 
units, subject to this part, produced by a manufacturer forwhich the 
manufacturer has reasonable assurance that sale was or willbe made to 
ultimate purchasers in the United States.
    Useful life means the period during which an engine isdesigned to 
properly function in terms of reliability and fuelconsumption, without 
being remanufactured, specified as hours ofoperation and years. It is 
the period during which a new engine isrequired to comply with all 
applicable emission standards. (Note:Sec. 94.9(a) specifies minimum 
requirements for useful lifevalues.)
    Vessel means a marine vessel.
    Vessel operator means any individual that physicallyoperates or 
maintains a vessel, or exercises managerial control overthe operation of 
the vessel.
    Vessel owner means the individual or company that holdslegal title 
to a vessel.
    Voluntary emission recall means a repair, adjustment, ormodification 
program voluntarily initiated and conducted by amanufacturer to remedy 
any emission-related defect for whichnotification of engine or vessel 
owners has been provided.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov.8, 2002; 68 
FR 9781, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 70 FR40457, July 
13, 2005]

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.2 was 
amended by revising paragraph (1)(ii) of thedefinition for ``New 
vessel'' and adding definitions for``Nonroad'' and ``Nonroad engine'', 
effectiveJuly 7, 2008. For the convenience of the user, the added and 
revisedtext is set forth as follows:



Sec. 94.2  Definitions.

                                * * * * *

    New vessel means:
    (1)(i) * * *

[[Page 609]]

    (ii) For vessels with no Category 3 engines, a vessel thathas been 
modified such that the value of the modifications exceeds 50percent of 
the value of the modified vessel. The value of themodification is the 
difference in the assessed value of the vesselbefore the modification 
and the assessed value of the vessel after themodification. Use the 
following equation to determine if thefractional value of the 
modification exceeds 50 percent:
Percent of value = [(Value after modification) - (Valuebefore 
modification)] x ( 100% / (Value aftermodification)

                                * * * * *

    Nonroad means relating to nonroad engines, or vessels orequipment 
that include nonroad engines.
    Nonroad engine has the meaning given in 40 CFR 1068.30. Ingeneral, 
this means all internal-combustion engines except motorvehicle engines, 
stationary engines, engines used solely forcompetition, or engines used 
in aircraft.

                                * * * * *



Sec. 94.3  Abbreviations.

    The abbreviations of this section apply to all subparts of thispart 
and have the following meanings:

AECD--Auxiliary emission control device.
API--American Petroleum Institute.
ASTM--American Society for Testing and Materials.
[deg]C--Degrees Celsius.
CI--Compression ignition.
CO--Carbon monoxide.
CO2--Carbon dioxide.
disp.--volumetric displacement of an engine cylinder.
EGR--Exhaust gas recirculation.
EP--End point.
EPA--Environmental Protection Agency.
FEL--Family emission limit.
ft--foot or feet.
FTP--Federal Test Procedure.
g--gram(s).
g/kW-hr--Grams per kilowatt hour.
gal--U.S. gallon.
h--hour(s).
HC--hydrocarbon.
Hg--Mercury.
hp--horsepower.
ICI--Independent Commercial Importer.
in--inch(es).
K--Kelvin.
kg--kilogram(s).
km--kilometer(s).
kPa--kilopascal(s).
kW--kilowatt.
L/cyl--liters per cylinder.
m--meter(s).
max--maximum.
mg--milligram(s).
min--minute.
ml--milliliter(s).
mm--millimeter.
NIST--National Institute for Standards and Testing.
NMHC--Non-methane hydrocarbons.
NTIS--National Technical Information Service.
NO--nitric oxide.
NO2--nitrogen dioxide.
NOX--oxides of nitrogen.
No.--number.
O2--oxygen.
pct--percent.
PM--particulate matter.
PMM--post-manufacture marinizer.
ppm--parts per million by volume.
ppmC--parts per million, carbon.
rpm--revolutions per minute.
s--second(s).
SAE--Society of Automotive Engineers.
SEA--Selective Enforcement Auditing.
SI--International system of units (i.e., metric).
THC--Total hydrocarbon.
THCE--Total hydrocarbon equivalent.
U.S.--United States.
U.S.C.--United States Code.
vs--versus.
W--watt(s).
wt--weight.



Sec. 94.4  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of theinformation 
submitted pursuant to this part is entitled toconfidential treatment as 
provided by 40 CFR part 2, subpart B.
    (b) Any claim of confidentiality must accompany the information 
atthe time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part 
isconfidential, a person or manufacturer must indicate clearly the 
itemsof information claimed confidential by marking, circling, 
bracketing,stamping, or otherwise specifying the confidential 
information.Furthermore, EPA requests, but does not require, that the 
submitteralso provide a second copy of its submittal from which 
allconfidential information has been deleted. If a need arises 
topublicly release nonconfidential information, EPA will assume that 
thesubmitter has accurately deleted the confidential information 
fromthis second copy.
    (d) If a claim is made that some or all of the informationsubmitted 
pursuant to this part is entitled to confidential

[[Page 610]]

treatment, the information covered by that confidentiality claimwill be 
disclosed by EPA only to the extent and by means of theprocedures set 
forth in 40 CFR part 2, subpart B.
    (e) Information provided without a claim of confidentiality at 
thetime of submission may be made available to the public by EPA 
withoutfurther notice to the submitter, in accordance with 40 CFR 
2.204(c)(2)(i)(A).



Sec. 94.5  Reference materials.

    We have incorporated by reference the documents listed in 
thissection. The Director of the Federal Register approved 
theincorporation by reference as prescribed in 5 U.S.C. 552(a) and 1 
CFRpart 51. Anyone may inspect copies at the U.S. EPA, Air and 
RadiationDocket and Information Center, 1301 Constitution Ave., NW., 
Room B102,EPA West Building, Washington, DC 20460 or at the National 
Archivesand Records Administration (NARA). For information on the 
availabilityof this material at NARA, call 202-741-6030, or go to:http:/
/www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (a) ASTM material. Table 1 of Sec. 94.5 listsmaterial from the 
American Society for Testing and Materials that wehave incorporated by 
reference. The first column lists the number andname of the material. 
The second column lists the sections of thispart where we reference it. 
Anyone may purchase copies of thesematerials from the American Society 
for Testing and Materials, 100Barr Harbor Dr., PO Box C700, West 
Conshohocken, PA 19428. Table 1follows:

                  Table 1 of Sec.  94.5--ASTMMaterials
------------------------------------------------------------------------
           Document No. and name                  Part 94 reference
------------------------------------------------------------------------
ASTM D 86-01, Standard Test Method for       94.108
 Distillation ofPetroleum Products at
 Atmospheric Pressure.
ASTM D 93-02, Standard Test Methods for      94.108
 Flash-Point byPensky-Martens Closed Cup
 Tester.
ASTM D 129-00, Standard Test Method for      94.108
 Sulfur in PetroleumProducts (General Bomb
 Method).
ASTM D 287-92 (Reapproved 2000), Standard    94.108
 Test Method forAPI Gravity of Crude
 Petroleum and Petroleum Products
 (HydrometerMethod).
ASTM D 445-01, Standard Test Method for      94.108
 Kinematic Viscosityof Transparent and
 Opaque Liquids (the Calculation of
 DynamicViscosity).
ASTM D 613-01, Standard Test Method for      94.108
 Cetane Number ofDiesel Fuel Oil.
ASTM D 1319-02a, Standard Test Method for    94.108
 Hydrocarbon Typesin Liquid Petroleum
 Products by Fluorescent
 IndicatorAdsorption.
ASTM D 2622-98, Standard Test Method for     94.108
 Sulfur inPetroleum Products by Wavelength
 Dispersive X-ray FluorescenceSpectrometry.
ASTM D 5186-99, Standard Test Method for     94.108
 Determination ofthe Aromatic Content and
 Polynuclear Aromatic Content of Diesel
 Fuelsand Aviation Turbine Fuels by
 Supercritical FluidChromatography.
ASTM E 29-02, Standard Practice for Using    94.2
 SignificantDigits in Test Data to
 Determine Conformance withSpecifications.
------------------------------------------------------------------------

    (b) ISO material. Table 2 of Sec. 94.5 listsmaterial from the 
International Organization for Standardization thatwe have incorporated 
by reference. The first column lists the numberand name of the material. 
The second column lists the section of thispart where we reference it. 
Anyone may purchase copies of thesematerials from the International 
Organization for Standardization,Case Postale 56, CH-1211 Geneva 20, 
Switzerland.
    Table 2 follows:

                  Table 2 of Sec.  94.5--ISOMaterials
------------------------------------------------------------------------
           Document No. and name               40 CFR part 94 reference
------------------------------------------------------------------------
ISO 8178-1, Reciprocating internal           94.109
 combustionengines--Exhaust emission
 measurement--Part 1: Test-bedmeasurement
 of gaseous and particulate exhaust
 emissions,1996.
------------------------------------------------------------------------


[[Page 611]]

    (c) IMO material. Table 3 of Sec. 94.5 listsmaterial from the 
International Maritime Organization that we haveincorporated by 
reference. The first column lists the number and nameof the material. 
The second column lists the section of this partwhere we reference it. 
Anyone may purchase copies of these materialsfrom the International 
Maritime Organization, 4 Albert Embankment,London SE1 7SR, United 
Kingdom.
    Table 3 follows:

                  Table 3 of Sec.  94.5--IMOMaterials
------------------------------------------------------------------------
           Document No. and name               40 CFR part 94 reference
------------------------------------------------------------------------
Resolution 2--Technical Code on Control of   94.2, 94.11, 94.108,94.109,
 Emission ofNitrogen Oxides from Marine       94.204, 94.211, 94.1004.
 Diesel Engines, 1997.
------------------------------------------------------------------------


[68 FR 9781, Feb. 28, 2003]



Sec. 94.6  Regulatory structure.

    This section provides an overview of the regulatory structure ofthis 
part.
    (a) The regulations of this Part 94 are intended to controlemissions 
from in-use marine engines.
    (b) The engines for which the regulations of this part (i.e., 40CFR 
part 94) apply are specified by Sec. 94.1, and by thedefinitions of 
Sec. 94.2. The point at which an engine orvessel becomes subject to the 
regulations of this part is determinedby the definitions of new marine 
engine and new marine vessel inSec. 94.2. Subpart J of this part 
contains provisionsexempting certain engines and vessels from the 
emission standards inthis part under special circumstances.
    (c) To comply with the requirements of this part, a manufacturermust 
demonstrate to EPA that the engine meets the applicable standardsof 
Sec. Sec. 94.7 and 94.8, and all other requirements ofthis part. The 
requirements of this certification process aredescribed in subparts C 
and D of this part.
    (d) Subpart B of this part specifies procedures and equipment tobe 
used for conducting emission tests for the purpose of theregulations of 
this part.
    (e) Subparts E, F, and H of this part specify requirements 
formanufacturers after certification; that is during production and 
useof the engines.
    (f) Subpart I of this part contains requirements applicable to 
theimportation of marine engines covered by the provisions of this part.
    (g) Subpart L of this part describes prohibited acts and 
containsother enforcement provisions relating to marine engines and 
vesselscovered by the provisions of this part.
    (h) Unless specified otherwise, the provisions of this part applyto 
all marine engines and vessels subject to the emission standards ofthis 
part.



Sec. 94.7  General standards and requirements.

    (a) Marine engines and vessels may not be equipped with a 
defeatdevice.
    (b) An engine may not be equipped with an emission control systemfor 
the purpose of complying with emission standards if such a systemwill 
cause or contribute to an unreasonable risk to public health,welfare, or 
safety in its operation or function.
    (c) You may not design your engines with emission-control 
devices,systems, or elements of design that cause or contribute to 
anunreasonable risk to public health, welfare, or safety whileoperating. 
For example, this would apply if the engine emits a noxiousor toxic 
substance it would otherwise not emit that contributes tosuch an 
unreasonable risk.
    (d) Manufacturers shall ensure that all engines subject to 
theemission standards of this part are equipped with a connection in 
theengine exhaust system that is located downstream of the engine 
andbefore any point at which the exhaust contacts water (or any 
othercooling/scrubbing medium) for the temporary attachment of 
gaseousand/or particulate emission sampling equipment. Use good 
engineeringjudgment to locate the connection. This connection shall be 
internallythreaded with standard pipe threads of a size not larger than 
one-halfinch, and shall be closed by a pipe-

[[Page 612]]

plug when not in use.Equivalent connections are allowed. Engine 
manufacturers may complywith this requirement by providing vessel 
manufacturers with clearinstructions explaining how to meet this 
requirement, and noting inthe instructions that failure to comply may 
subject the vesselmanufacturer to federal penalties. Vessel 
manufacturers are requiredto comply with the engine manufacturer's 
instructions.
    (e) Electronically controlled engines subject to the 
emissionstandards of this part shall broadcast on engine's controller 
areanetworks engine torque (as percent of maximum torque at that 
speed)and engine speed.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov.8, 2002; 68 
FR 9782, Feb. 28, 2003]



Sec. 94.8  Exhaust emission standards.

    (a) The Tier 1 standards of paragraph (a)(1) of this section 
applyuntil replaced by the standards of paragraph (a)(2) of this 
section.
    (1) Tier 1 standards. NOX emissions from modelyear 2004 
and later engines with displacement of 2.5 or more litersper cylinder 
may not exceed the following values:
    (i) 17.0 g/kW-hr when maximum test speed is less than 130 rpm.
    (ii) 45.0 x N-0.20 when maximum test speedis at least 130 
but less than 2000 rpm, where N is the maximum testspeed of the engine 
in revolutions per minute.

    (Note: Round speed-dependent standards to the nearest 0.1g/kW-hr.)

    (iii) 9.8 g/kW-hr when maximum test speed is 2000 rpm or more.
    (2) Tier 2 standards. (i) Exhaust emissions from marinecompression-
ignition engines shall not exceed the applicable Tier 2exhaust emission 
standards contained in Table A-1 as follows:

                                              Table A-1--Primary Tier2 Exhaust Emission Standards (g/kW-hr)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           THC+NOX g/kW-
    Engine Sizeliters/cylinder, rated power                     Category                  Model year \a\        hr          CO g/kW-hr      PM g/kW-hr
--------------------------------------------------------------------------------------------------------------------------------------------------------
disp. <0.9 and power =37 kW........  Category 1,Commercial...................            2005             7.5             5.0            0.40
                                                Category 1, Recreational................            2007             7.5             5.0            0.40
0.9 <= disp. <1.2 all power levels............  Category 1,Commercial...................            2004             7.2             5.0            0.30
                                                Category 1, Recreational................            2006             7.2             5.0            0.30
1.2 <= disp. <2.5 all power levels............  Category 1,Commercial...................            2004             7.2             5.0            0.20
                                                Category 1, Recreational................            2006             7.2             5.0            0.20
2.5 <= disp. <5.0 all power levels............  Category 1,Commercial...................            2007             7.2             5.0            0.20
                                                Category 1, Recreational................            2009             7.2             5.0            0.20
5.0 <= disp. <15.0 all power levels...........  Category2...............................            2007             7.8             5.0            0.27
15.0 <= disp. <20.0 power <3300 kW............  Category2...............................            2007             8.7             5.0            0.50
15.0 <= disp. <20.0 power =3300 kW.  Category2...............................            2007             9.8             5.0            0.50
20.0 <= disp. <25.0 all power levels..........  Category2...............................            2007             9.8             5.0            0.50
25.0 <= disp. <30.0 all power levels..........  Category2...............................            2007            11.0             5.0            0.50
disp. =30.0 all power levels.......  Category 3..............................              See paragraph(a)(2)(ii) of this section
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The model years listed indicate the model years for whichthe specified standards start.

    (ii) EPA has not finalized Tier 2 standards for Category 3engines. 
EPA will promulgate final Tier 2 standards for Category 3engines on or 
before December 17, 2009.
    (b) Exhaust emissions of oxides of nitrogen, carbon 
monoxide,hydrocarbon, and particulate matter (and other compounds, 
asapplicable) shall be measured using the procedures set forth insubpart 
B of this part.
    (c) In lieu of the THC+NOX standards, and PM 
standardsspecified in paragraph (a) of this section, manufacturers may 
elect toinclude engine families in the averaging, banking, and 
tradingprogram, the provisions of which are specified in subpart D of 
this

[[Page 613]]

part. The manufacturer shall then set a family emission limit(FEL) which 
will serve as the standard for that engine family. The ABTprovisions of 
subpart D of this part do not apply for Category 3engines.
    (d)(1) Naturally aspirated engines subject to the standards ofthis 
section shall not discharge crankcase emissions into the 
ambientatmosphere.
    (2) For engines using turbochargers, pumps, blowers, orsuperchargers 
for air induction, if the engine discharges crankcaseemissions into the 
ambient atmosphere in use, these crankcaseemissions shall be included in 
all exhaust emission measurements. Thisrequirement applies only for 
engines subject to hydrocarbon standards(e.g., THC standards, NMHC 
standards, or THC+NOXstandards).
    (3) The crankcase requirements of this paragraph (d) do not applyfor 
Tier 1 engines.
    (e) Exhaust emissions from Category 1 and Category 2 
propulsionengines subject to the standards (or FELs) in paragraph (a), 
(c), or(f) of this section shall not exceed:
    (1) Commercial marine engines. (i) 1.20 times the 
applicablestandards (or FELs) when tested in accordance with the 
supplementaltest procedures specified in Sec. 94.106 at loads 
greaterthan or equal to 45 percent of the maximum power at rated speed 
or1.50 times the applicable standards (or FELs) at loads less than 
45percent of the maximum power at rated speed.
    (ii) As an option, the manufacturer may choose to comply withlimits 
of 1.25 times the applicable standards (or FELs) when testedover the 
whole power range in accordance with the supplemental testprocedures 
specified in Sec. 94.106, instead of the limitsin paragraph (e)(1)(i) 
of this section.
    (2) Recreational marine engines. (i) 1.20 times theapplicable 
standards (or FELs) when tested in accordance with thesupplemental test 
procedures specified in Sec. 94.106 atloads greater than or equal to 45 
percent of the maximum power atrated speed and speeds less than 95 
percent of maximum test speed, or1.50 times the applicable standards (or 
FELs) at loads less than 45percent of the maximum power at rated speed, 
or 1.50 times theapplicable standards (or FELs) at any loads for speeds 
greater than orequal to 95 percent of the maximum test speed.
    (ii) As an option, the manufacturer may choose to comply withlimits 
of 1.25 times the applicable standards (or FELs) when testedover the 
whole power range in accordance with the supplemental testprocedures 
specified in Sec. 94.106, instead of the limitsin paragraph (e)(2)(i) 
of this section.
    (f) The following define the requirements for low-emitting BlueSky 
Series engines:
    (1) Voluntary standards. (i) Category 1 and Category 2engines may be 
designated ``Blue Sky Series'' engines bymeeting the voluntary standards 
listed in Table A-2, whichapply to all certification and in-use testing:

            Table A-2--Voluntary EmissionStandards [g/kW-hr]
------------------------------------------------------------------------
         Rated brake power (kW)               THC+NOX           PM
------------------------------------------------------------------------
Power = 37 kW, and displ. <               4.0            0.24
 0.9....................................
0.9 <= displ. < 1.2.....................             4.0            0.18
1.2 <= displ. < 2.5.....................             4.0            0.12
2.5 <= displ. < 5.......................             5.0            0.12
5 <= displ. < 15........................             5.0            0.16
15 <= disp. < 20, and power < 3300 kW...             5.2            0.30
15 <= disp. < 20, and power =             5.9            0.30
 3300 kW................................
20 <= disp. < 25........................             5.9            0.30
25 <= disp. < 30........................             6.6            0.30
------------------------------------------------------------------------

    (ii) Category 3 engines may be designated ``Blue SkySeries'' engines 
by meeting these voluntary standards that wouldapply to all 
certification and in-use testing:
    (A) A NOX standard of 9.0 xN-0.20 where N = 
the maximum test speed of the enginein revolutions per minute (or 4.8 g/
kW-hr for engines with maximumtest speeds less than 130 rpm).

[[Page 614]]

(Note: Round speed-dependent standards to the nearest 0.1 g/kW-hr.)
    (B) An HC standard of 0.4 g/kW-hr.
    (C) A CO standard of 3.0 g/kW-hr.
    (2) Additional standards. Blue Sky Series engines aresubject to all 
provisions that would otherwise apply under this part.
    (3) Test procedures. Manufacturers may use an alternateprocedure to 
demonstrate the desired level of emission control ifapproved in advance 
by the Administrator.
    (g) Standards for alternative fuels. The standards described inthis 
section apply to compression-ignition engines, irrespective offuel, with 
the following two exceptions for Category 1 and Category 2engines:
    (1) Engines fueled with natural gas shall comply 
withNMHC+NOX standards that are numerically equivalent to 
theTHC+NOX described in paragraph (a) of this section; and
    (2) Engines fueled with alcohol fuel shall comply 
withTHCE+NOX standards that are numerically equivalent to 
theTHC+NOX described in paragraph (a) of this section.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68342, Nov.8, 2002; 68 
FR 9782, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 72 FR68525, Dec. 5, 
2007]



Sec. 94.9  Compliance with emission standards.

    (a) The general standards and requirements in Sec. 94.7and the 
emission standards in Sec. 94.8 apply to each newengine throughout its 
useful life period. The useful life is specifiedboth in years and in 
hours of operation, and ends when either of thevalues (hours of 
operation or years) is exceeded.
    (1) The minimum useful life is:
    (i) 10 years or 1,000 hours of operation for recreational Category1 
engines.
    (ii) 10 years or 10,000 hours of operation for commercial Category1 
engines.
    (iii) 10 years or 20,000 hours of operation for Category 2engines.
    (iv) 3 years or 10,000 hours of operation for Category 3 engines.
    (2) The manufacturer shall specify a longer useful life if theengine 
is designed to remain in service longer than the applicableminimum 
useful life without being rebuilt. A manufacturer'srecommended time to 
remanufacture/rebuild longer than the minimumuseful life is one 
indicator of a longer design life.
    (3) Manufacturers may request in the application for 
certificationthat we approve a shorter useful life for an engine family. 
We mayapprove a shorter useful life, in hours of engine operation but 
not inyears, if we determine that these engines will rarely operate 
longerthan the shorter useful life. If engines identical to those in 
theengine family have already been produced and are in use, 
thedemonstration must include documentation from such in-use engines. 
Inother cases, the demonstration must include an engineering analysis 
ofinformation equivalent to such in-use data, such as data from 
researchengines or similar engine models that are already in production. 
Thedemonstration must also include recommended overhaul intervals, 
anymechanical warranty offered for the engine or its components, and 
anyrelevant customer design specifications. The demonstration may 
includeany other relevant information. The useful life value may not 
beshorter than any of the following:
    (i) 1,000 hours of operation.
    (ii) The recommended overhaul interval.
    (iii) The mechanical warranty for the engine.
    (b) Certification is the process by which manufacturers apply forand 
obtain certificates of conformity from EPA, which allows themanufacturer 
to introduce into commerce new marine engines for sale oruse in the U.S.
    (1) Compliance with the applicable emission standards by an 
enginefamily shall be demonstrated by the certifying manufacturer before 
acertificate of conformity may be issued under Sec. 
94.208.Manufacturers shall demonstrate compliance using emission 
data,measured using the procedures specified in Subpart B of this 
part,from a low hour engine. A development engine that is equivalent 
indesign to the marine engines being certified may be used for Category2 
or Category 3 certification.
    (2) The emission values to compare with the standards shall be 
theemission values of a low hour engine, or a

[[Page 615]]

development engine,adjusted by the deterioration factors developed in 
accordance with theprovisions of Sec. 94.219. Before comparing any 
emissionvalue with the standard, round it to the same number of 
significantfigures contained in the applicable standard.
    (c) Upon request by the manufacturer, the Administrator may limitthe 
applicability of exhaust emission requirements ofSec. 94.8(e) as 
necessary for safety or to otherwise protectthe engine.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68342, Nov.8, 2002; 68 
FR 9783, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 70 FR40458, July 
13, 2005]



Sec. 94.10  Warranty period.

    (a)(1) Warranties imposed by Sec. 94.1107 for Category 1or Category 
2 engines shall apply for a period of operating hoursequal to at least 
50 percent of the useful life in operating hours ora period of years 
equal to at least 50 percent of the useful life inyears, whichever comes 
first.
    (2) Warranties imposed by Sec. 94.1107 for Category 3engines shall 
apply for a period of operating hours equal to at leastthe full useful 
life in operating hours or a period of years equal toat least the full 
useful life in years, whichever comes first.
    (b) Warranties imposed by Sec. 94.1107 shall apply for aperiod not 
less than any mechanical warranties provided by themanufacturer to the 
owner.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb.28, 2003]



Sec. 94.11  Requirements for rebuilding certified engines.

    (a) The provisions of this section apply with respect to 
enginessubject to the standards prescribed in Sec. 94.8 and 
areapplicable to the process of engine rebuilding. Engine 
rebuildingmeans to overhaul an engine or to otherwise perform extensive 
serviceon the engine (or on a portion of the engine or engine system). 
Forthe purpose of this definition, perform extensive service means 
todisassemble the engine (or portion of the engine or engine 
system),inspect and/or replace many of the parts, and reassemble the 
engine(or portion of the engine or engine system) in such a manner 
thatsignificantly increases the service life of the resultant engine.
    (b) When rebuilding an engine, portions of an engine, or an 
enginesystem, there must be a reasonable technical basis for knowing 
thatthe resultant engine is equivalent, from an emissions standpoint, to 
acertified configuration (i.e., tolerances, 
calibrations,specifications), and the model year(s) of the resulting 
engineconfiguration must be identified. A reasonable basis would exist 
if:
    (1) Parts installed, whether the parts are new, used, or rebuilt,are 
such that a person familiar with the design and function of motorvehicle 
engines would reasonably believe that the parts perform thesame function 
with respect to emission control as the original parts;and
    (2) Any parameter adjustment or design element change is madeonly:
    (i) In accordance with the original engine 
manufacturer'sinstructions; or
    (ii) Where data or other reasonable technical basis exists thatsuch 
parameter adjustment or design element change, when performed onthe 
engine or similar engines, is not expected to adversely affect in-use 
emissions.
    (c) When an engine is being rebuilt and remains installed or 
isreinstalled in the same vessel, it must be rebuilt to a 
configurationof the same or later model year as the original engine. 
When an engineis being replaced, the replacement engine must be an 
engine of (orrebuilt to) a certified configuration that is equivalent, 
from anemissions standpoint, to the engine being replaced.
    (d) At time of rebuild, emission-related codes or signals from on-
board monitoring systems may not be erased or reset without 
diagnosingand responding appropriately to the diagnostic codes, 
regardless ofwhether the systems are installed to satisfy requirements 
inSec. 94.211 or for other reasons and regardless of form orinterface. 
Diagnostic systems must be free of all such codes when therebuilt engine 
is returned to service. Such signals may not berendered inoperative 
during the rebuilding process.
    (e)(1) When conducting a rebuild, all critical emission-
relatedcomponents listed in Appendix I of this part not

[[Page 616]]

otherwiseaddressed by paragraphs (b) through (d) of this section must 
bechecked and cleaned, adjusted, repaired, or replaced as 
necessary,following manufacturer recommended practices.
    (2) During the installation of a rebuilt engine, all 
criticalemission-related components listed in Appendix I of this part 
nototherwise addressed by paragraphs (b) through (d) of this section 
mustbe checked as necessary, following manufacturer recommended 
practices.
    (f) Records shall be kept by parties conducting activitiesincluded 
in paragraphs (b) through (e) of this section. At minimum therecords 
shall include the hours of operation at the time of rebuild, alisting of 
work performed on the engine and emission-related controlcomponents 
(including a listing of parts and components used, engineparameter 
adjustments, emission-related codes or signals responded toand reset), 
and work performed under paragraph (e) of this section.
    (1) Parties may keep records in whatever format or system theychoose 
as long as the records are understandable to an EPA enforcementofficer 
or can be otherwise provided to an EPA enforcement officer inan 
understandable format when requested.
    (2) Parties are not required to keep records of information thatis 
not reasonably available through normal business practicesincluding 
information on activities not conducted by themselves orinformation that 
they cannot reasonably access.
    (3) Parties may keep records of their rebuilding practices for 
anengine family rather than on each individual engine rebuilt in 
caseswhere those rebuild practices are followed routinely.
    (4) Records must be kept for a minimum of two years after theengine 
is rebuilt.
    (g) For Category 3 engines, the owner and operator shall alsocomply 
with the recordkeeping requirements in the Annex VI TechnicalCode 
(incorporated by reference at Sec. 94.5) regarding theEngine Book of 
Record Parameters.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb.28, 2003]



Sec. 94.12  Interim provisions.

    This section contains provisions that apply for a limited numberof 
calendar years or model years. These provisions supercede the 
otherprovisions of this part. The provisions of this section do not 
applyfor Category 3 engines.
    (a) Compliance date of standards. Certain companies maydelay 
compliance with emission standards. Companies wishing to takeadvantage 
of this provision must inform the Designated Officer oftheir intent to 
do so in writing before the date that compliance withthe standards would 
otherwise be mandatory.
    (1) Post-manufacture marinizers may elect to delay the model yearof 
the Tier 2 standards for commercial engines as specified inSec. 94.8 by 
one year for each engine family.
    (2) Small-volume manufacturers may elect to delay the model yearof 
the Tier 2 standards for recreational engines as specified inSec. 94.8 
by five years for each engine family.
    (b) Early banking of emission credits. (1) A manufacturermay 
optionally certify engines manufactured before the date the Tier 
2standards take effect to earn emission credits under the 
averaging,banking, and trading program. Such optionally certified 
engines aresubject to all provisions relating to mandatory certification 
andenforcement described in this part. Manufacturers may begin 
earningcredits for recreational engines on December 9, 2002.
    (2) Consistent with the provisions of Subpart D of this 
part,NOX and PM emission credits may be generated from 
enginesprior to the applicable effective compliance date of the 
applicablestandard (i.e., the effective compliance date inSec. 94.8(a), 
as applicable), relative to baseline emissionrates.
    (3)(i) THC+NOX credits generated under this paragraph(b) 
shall be calculated as specified in Sec. 92.305, exceptthat the 
baseline emission rate may be either the applicable standardor a 
measured THC+NOX baseline level for the configurationwith the 
lowest NOX emission rate in the applicable enginefamily. The 
additional credits resulting from using a measuredbaseline (instead of 
the applicable standard) shall

[[Page 617]]

be discountedby 10 percent. This discount does not apply to the portion 
of thecredits resulting from the engine's emissions being below 
theapplicable standard. Baseline emission rates may not exceed the 
IMONOX limits.
    (ii) PM credits generated under this paragraph (b) shall 
becalculated as specified in Sec. 94.305, except that theapplicable 
standard may be replaced by a measured PM baseline emissionrate for the 
configuration with the lowest NOX emissionrate in the 
applicable engine family that is approved in advance bythe 
Administrator. The additional credits resulting from using ameasured 
baseline (instead of the applicable standard) shall bediscounted by 10 
percent. This discount does not apply to the portionof the credits 
resulting from the engine's emissions being below theapplicable 
standard.
    (4)(i) For post-manufacture marinizers, measured baseline 
emissionlevels may be based on emissions from a single engine for each 
enginefamily.
    (ii) For all other manufacturers, measured baseline emissionlevels 
must be based on the average of emissions from at least threeengines for 
each engine family.
    (iii) The Administrator must approve any measured baselines 
inadvance.
    (5) For an engine to be eligible to generate early credits underthis 
paragraph (b), its certified emission levels for all pollutantsmust be 
below the Tier 2 standards listed in Sec. 94.8, withthe following 
exception: PMMs may include in this early credit programCategory 1 
marine engines with certified emissions above the Tier 2standards listed 
in Sec. 94.8. Early credits generated byCategory 1 marine engines with 
certified emissions above the Tier 2standards listed in Sec. 94.8 may 
not be used for model year2008 or later engines.
    (c) Testing of Category 1 engines subject to the requirements ofthis 
part that is conducted by the Administrator shall be performedusing test 
fuels that meet the specifications in Sec. 94.108and have a sulfur 
content no higher than 0.20 weight percent, unlessthe PM emission rates 
are corrected for the effect of a higher fuelsulfur content.
    (d) Post-manufacture marinizers may import an uncertified enginefor 
marinization, in cases where the engine in the final 
marinizedconfiguration is not subject to the standards of this part 
because:
    (1) The model year of the marinized engine is prior to the 
firstmodel year for which engines of that size are subject to 
thestandards;
    (2) The post-manufacture marinizer is marinizing the engine 
underparagraph (a) of this section; or
    (3) The post-manufacture marinizer is granted hardship relief 
fromthe Tier 2 standards under Sec. 94.209(c).
    (e) Compliance date of NTE requirements (1) Notwithstandingthe other 
provisions of this part, the requirements ofSec. 94.8(e) for commercial 
marine engines start with 2010model year engines for post-manufacture 
marinizers and 2007 model yearengines for all other engine 
manufacturers.
    (2) Notwithstanding the other provisions of this part, 
therequirements of Sec. 94.8(e) for recreational marine enginesstart 
with 2012 model year engines for post-manufacture marinizers and2009 
model year engines for all other engine manufacturers.
    (f) Manufacturers may submit test data collected using the AnnexVI 
test procedures to show compliance with Tier 1 standards for modelyears 
before 2007. Note: Starting in 2007, EPA may approve amanufacturer's 
request to continue using alternate procedures underSec. 94.102(c), as 
long as the manufacturer satisfies EPAthat the differences in testing 
will not affect NOXemission rates.
    (g) Flexibility for engines over 560kW. Notwithstanding theother 
provisions of this part, manufacturers may choose to delaycertification 
of marine engines with less than 2.5 liters per cylinderand rated power 
above 560 kW, that are derived from a land-basednonroad engine with a 
rated power greater than 560 kW, if they do allof the following:
    (1) Certify all of their applicable marine engines with less than2.5 
liters per cylinder and rated power above 560 kW to aNOX 
standard of 6.4 g/kW-hr for model years 2008 through2012.
    (2) Notify EPA in writing before 2004 of their intent to use 
thisprovision. This notification must include a signed

[[Page 618]]

statementcertifying that the manufacturer will comply with all the 
provisionsof this paragraph (g).
    (3) Add a permanent, legible label, written in block letters 
inEnglish, to a readily visible part of each engine exempted under 
thisparagraph (f). This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROLINFORMATION''.
    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model yearof 
the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR94.12(g) FROM 
EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (h) Flexibility for small-volume boat builders.Notwithstanding the 
other provisions of this part, manufacturers maysell uncertified 
recreational engines to small-volume boat buildersduring the first five 
years for which the emission standards inSec. 94.8 apply, subject to 
the following provisions:
    (1) The U.S.-directed production volume of boats from any small-
volume boat builder using uncertified engines during the total five-year 
period may not exceed 80 percent of the manufacturer's averageannual 
production for the three years prior to the generalapplicability of the 
recreational engine standards inSec. 94.8, except as allowed in 
paragraph (h)(2) of thissection.
    (2) Small-volume boat builders may exceed the production limits 
inparagraph (h)(1) of this section, provided they do not exceed 20 
boatsduring the five-year period or 10 boats in any single calendar 
year.This does not apply to boats powered by engines with 
displacementgreater than 2.5 liters per cylinder.
    (3) Small-volume boat builders must keep records of all the boatsand 
engines produced under this paragraph (h), including boat andengine 
model numbers, serial numbers, and dates of manufacture.Records must 
also include information verifying compliance with thelimits in 
paragraph (h)(1) or (2) of this section. Keep these recordsuntil at 
least two full years after you no longer use the provisionsin this 
paragraph (h).
    (4) Manufacturers must add a permanent, legible label, written 
inblock letters in English, to a readily visible part of each 
engineexempted under this paragraph (h).
    This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROLINFORMATION''.
    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model yearof 
the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR94.12(h)
    FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov.8, 2002; 68 
FR 9784, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 69 FR9215, Feb. 27, 
2004; 70 FR 40458, July 13, 2005]

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.12 was 
amended by adding paragraph (i), effectiveJuly 7, 2008. For the 
convenience of the user, the added text is setforth as follows:



Sec. 94.12  Interim provisions.

                                * * * * *

    (i) Early use of future provisions. For model years 2009through 
2013, certain marine engines will be subject to therequirements of this 
part 94 while others will be subject to therequirements of 40 CFR part 
1042. Manufacturers may ask forflexibility in making the transition to 
the new regulations asfollows:
    (1) You may ask to use a combination of the test procedures ofthis 
part and those of 40 CFR part 1042. This might include the earlyuse of 
the duty cycles and NTE specifications that apply for Tier 3 orTier 4 
engines. We will approve your request only if you show us thatit does 
not affect your ability to demonstrate compliance with theapplicable 
emission standards. This generally requires that thecombined procedures 
would result in emission measurements at least ashigh as those that 
would be measured using the procedures specified inthis part. 
Alternatively, you may demonstrate that the combinedeffects of the 
procedures is small relative to your compliance margin(the degree to 
which your engines are below the applicable standards).
    (2) You may ask to comply with the administrative requirements of40 
CFR parts 1042

[[Page 619]]

and 1068 instead of the equivalent requirementsof this part.



                        Subpart B_Test Procedures



Sec. 94.101  Applicability.

    Provisions of this subpart apply for testing performed by 
theAdministrator or a manufacturer.



Sec. 94.102  General provisions.

    (a) The test procedures specified in this part are intended 
toproduce emission measurements that are equivalent to 
emissionmeasurements that would result from emission tests performed 
duringin-use operation using the same engine configuration installed in 
avessel.
    (b) Test procedures otherwise allowed by the provisions of 
thissubpart shall not be used where such procedures are not 
consistentwith good engineering practice and the regulatory goal 
specified inparagraph (a) of this section.
    (c) Alternate test procedures may be used if shown to 
yieldequivalent results, and if approved in advance by the 
Administrator.



Sec. 94.103  Test procedures for Category 1 marine engines.

    (a) Gaseous and particulate emissions shall be measured using 
thetest procedures specified in 40 CFR part 89, except as 
otherwisespecified in this subpart.
    (b) The Administrator may specify changes to the provisions 
ofparagraph (a) of this section that are necessary to comply with 
thegeneral provisions of Sec. 94.102.



Sec. 94.104  Test procedures for Category 2 marine engines.

    (a) Gaseous and particulate emissions shall be measured using 
thetest procedures specified in 40 CFR part 92, except as 
otherwisespecified in this subpart.
    (b)(1) The requirements of 40 CFR part 92 related to charge 
airtemperatures, engine speed and load, and engine air inlet 
restrictionpressures do not apply for marine engines.
    (2) For marine engine testing, charge air temperatures, enginespeed 
and load, and engine air inlet restriction pressures shall 
berepresentative of typical in-use marine engine conditions.
    (c) Conduct testing at ambient temperatures from 13 [deg]C to 
30[deg]C.
    (d) The Administrator may specify changes to the provisions 
ofparagraph (a) of this section that are necessary to comply with 
thegeneral provisions of Sec. 94.102.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov.8, 2002]



Sec. 94.105  Duty cycles.

    (a) Overview. For the purpose of determining compliance withthe 
emission standards of Sec. 94.8, except for those inSec. 94.8(e), 
engines shall be tested using the appropriateduty cycles described in 
this section.
    (b) General cycle. Propulsion engines that are used with (orintended 
to be used with) fixed-pitch propellers, propeller-lawauxiliary engines, 
and any other engines for which the other dutycycles of this section do 
not apply, shall be tested using the dutycycle described in the 
following Table B-1:

                                       Table B-1--General MarineDuty Cycle
----------------------------------------------------------------------------------------------------------------
                                                                 Engine
                                                               speed \1\    Percent of  Minimumtime
                          Mode No.                            (percent of    maximum      in mode     Weighting
                                                              maximumtest   test power   (minutes)     factors
                                                                 speed)        \2\
----------------------------------------------------------------------------------------------------------------
1...........................................................          100          100          5.0         0.20
2...........................................................           91           75          5.0         0.50
3...........................................................           80           50          5.0         0.15
4...........................................................           63           25          5.0         0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Power: 2 percent of engine maximum value.


[[Page 620]]

    (c) Variable-pitch and electrically coupled propellers.(1) Constant-
speed propulsion engines that are used with (or intendedto be used with) 
variable-pitch propellers or with electricallycoupled propellers shall 
be tested using the duty cycle described inthe following Table B-2:

                           Table B-2--Duty Cycle forConstant-Speed Propulsion Engines
----------------------------------------------------------------------------------------------------------------
                                                         Enginespeed
                                                             \1\       Percent of    Minimum
                        Mode No.                         (percent of  maximumtest    time in    Weightingfactors
                                                           maximum     power \2\       mode
                                                         test speed)                (minutes)
----------------------------------------------------------------------------------------------------------------
1......................................................          100          100          5.0            0.20
2......................................................          100           75          5.0            0.50
3......................................................          100           50          5.0            0.15
4......................................................          100           25          5.0            0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Power: 2 percent of engine maximum value.

    (2) For the purpose of determining compliance with the 
emissionstandards of Sec. 94.8, variable-speed propulsion enginesthat 
are used with (or intended to be used with) variable-pitchpropellers or 
with electrically coupled propellers shall be testedusing the duty cycle 
described in Table B-3, which follows:

  Table B-3--DutyCycle for Variable Speed Propulsion Engines Used on Non-Propeller LawVessels and for Variable
                                             Speed Auxiliary Engines
----------------------------------------------------------------------------------------------------------------
                                                                       Percent of    Minimum
                                                                        maximum      time in
      Test segment         Mode No.          Engine speed \1\          testtorque      mode     Weightingfactors
                                                                          \2\       (minutes)
----------------------------------------------------------------------------------------------------------------
1......................            1  Maximum Test Speed............          100          5.0            0.15
1......................            2  Maximum Test Speed............           75          5.0            0.15
1......................            3  Maximum Test Speed............           50          5.0            0.15
1......................            4  Maximum Test Speed............           10          5.0            0.10
2......................            5  Intermediate..................          100          5.0            0.10
2......................            6  Intermediate..................           75          5.0            0.10
2......................            7  Intermediate..................           50          5.0            0.10
2......................            8  Idle..........................            0          5.0            0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed (non-idle): 2 percent of point.Engine speed (idle): Within manufacturer's
  specifications. Idle speedis specified by the manufacturer.
\2\ Torque (non-idle): 2 percent of engine maximumvalue. Torque (idle): minimum fueling
  rate Load less than 5 percent ofpeak torque.

    (d) Auxiliary. For the purpose of determining compliancewith the 
emission standards of Sec. 94.8:
    (1) Constant speed auxiliary engines shall be tested using theduty 
cycle described in Table B-4, which follows:

                            Table B-4--Duty Cyclefor Constant-Speed Auxiliary Engines
----------------------------------------------------------------------------------------------------------------
                                                                            Percent of    Minimum
                                                                             maximum      time in     Weighting
            Mode No.                          Enginespeed \1\              test torque      mode       factors
                                                                               \2\       (minutes)
----------------------------------------------------------------------------------------------------------------
1...............................  Maximum Test Speed.....................          100          5.0         0.05
2...............................  Maximum Test Speed.....................           75          5.0         0.25
3...............................  Maximum Test Speed.....................           50          5.0         0.30
4...............................  Maximum Test Speed.....................           25          5.0         0.30
5...............................  Maximum Test Speed.....................           10          5.0         0.10
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Torque: 2 percent of engine maximum value.


[[Page 621]]

    (2) Variable speed auxiliary engines shall be tested usingthe duty 
cycle described in Table B-3 in paragraph (c)(2) ofthis section.
    (e) Recreational. For the purpose of determining compliancewith the 
emission standards of Sec. 94.8, recreationalengines shall be tested 
using the duty cycle described in TableB-5, which follows:

                                    Table B-5--RecreationalMarine Duty Cycle
----------------------------------------------------------------------------------------------------------------
                                                      Engine
                                                    speed\(1)\      Percent of
                    Mode No.                         (percent      maximum test   Minimumtime in     Weighting
                                                  ofmaximum test    power\(2)\    mode (minutes)      factors
                                                      speed)
----------------------------------------------------------------------------------------------------------------
1...............................................             100             100             5.0            0.08
2...............................................              91              75             5.0            0.13
3...............................................              80              50             5.0            0.17
4...............................................              63              25             5.0            0.32
5...............................................            idle               0             5.0            0.30
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Power: 2 percent of engine maximum value.


[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov.8, 2002; 70 
FR 40458, July 13, 2005]



Sec. 94.106  Supplemental test procedures for Category 1 and Category 2 marineengines.

    This section describes the test procedures for supplementaltesting 
conducted to determine compliance with the exhaust emissionrequirements 
of Sec. 94.8(e)(1). In general, thesupplemental test procedures are the 
same as those otherwise specifiedby this subpart, except that they cover 
any speeds, loads, ambientconditions, and operating parameters that may 
be experienced in use.The test procedures specified by other sections in 
this subpart alsoapply to these tests, except as specified in this 
section.
    (a) Notwithstanding other provisions of this subpart, 
testingconducted to determine compliance with the exhaust 
emissionrequirements of Sec. 94.8(e) may be conducted:
    (1) At any speed and load (or any combination of speeds and 
loadsthat is nominally steady-state) within the applicable Not To 
ExceedZone specified in paragraph (b) of this section;
    (2)(i) Without correction, at any intake air temperature 
between13[deg]C and 35[deg]C (or between 13[deg]C and 30[deg]C 
forengines not drawing intake air directly from a space that could 
beheated by the engine);
    (ii) Without correction at any ambient water temperature 
(orequivalent) between 5[deg]C and 27[deg]C;
    (iii) Without correction at any ambient humidity between 7.1 and10.7 
grams of moisture per kilogram of dry air; and
    (3) With a continuous sampling period not less than 30 seconds 
induration.
    (b) The specified Not to Exceed Zones for marine engines aredefined 
as follows. These Not to Exceed Zones apply, unless a modifiedzone is 
established under paragraph (c) of this section.
    (1) For commercial Category 1 engines certified using the dutycycle 
specified in Sec. 94.105(b), the Not to Exceed zonesare defined as 
follows:
    (i) The Not to Exceed zone is the region between the curves power= 
1.15 x SPD\2\ and power = 0.85 x SPD\4\, excluding alloperation below 
25% of maximum power at rated speed and excluding alloperation below 63% 
of maximum test speed.
    (ii) This zone is divided into two subzones, one above and onebelow 
45% of maximum power at rated speed.
    (iii) SPD in paragraph (b)(1)(i) of this section refers to percentof 
maximum test speed.
    (iv) See Figure B-1 for an illustration of this Not toExceed zone 
which follows:

[[Page 622]]

[GRAPHIC] [TIFF OMITTED] TR29DE99.002

    (2) For Category 2 engines certified using the duty cyclespecified 
in Sec. 94.105(b), the Not to Exceed zones aredefined as follows:
    (i) The Not to Exceed zone is the region between the curves power= 
1.04 x SPD\2\ and power = 0.76 x SPD\4\, excluding alloperation below 
25% of maximum power at rated speed and excluding alloperation below 63% 
of maximum test speed.
    (ii) This zone is divided into two subzones, one above and onebelow 
45% of maximum power at rated speed.

[[Page 623]]

    (iii) SPD in paragraph (b)(2)(i) of this section refers topercent of 
maximum test speed.
    (iv) See Figure B-2 in paragraph (b)(3) of this section foran 
illustration of this Not to Exceed zone.
    (3) For engines certified using the duty cycle specified inSec. 
94.105(c)(2), the Not to Exceed zones are defined asfollows:
[GRAPHIC] [TIFF OMITTED] TR29DE99.003


[[Page 624]]


    (i) The Not to Exceed zone is the region above the curvepower = 0.85 
SPD \4\, excluding all operation below 25% ofmaximum power at rated 
speed and excluding all operation below 63% ofmaximum test.
    (ii) This zone is divided into two subzones, one above and onebelow 
45% of maximum power at rated speed.
    (iii) SPD in paragraph (b)(3)(i) of this section refers to percentof 
maximum test speed.
    (iv) See Figure B-3 for an illustration of this Not toExceed zone:

[[Page 625]]

[GRAPHIC] [TIFF OMITTED] TR29DE99.004

    (4) For engines certified using the duty cycle specified inSec. 
94.105(c)(1), the Not to Exceed zone is defined as anyload greater than 
or equal to 25 percent of maximum power at ratedspeed, and any speed at 
which the engine operates in use.
    (5) For recreational marine engines certified using the duty 
cyclespecified in Sec. 94.105(e), the Not to Exceed zones aredefined as 
follows:

[[Page 626]]

    (i) The Not to Exceed zone is the region between the curvespower = 
1.15 x SPD\2\ and power = 0.85 x SPD\4\,excluding all operation below 
25% of maximum power at rated speed andexcluding all operation below 63% 
of maximum test speed.
    (ii) This zone is divided into three subzones, one below 45% 
ofmaximum power at maximum test speed; one above 95% of maximum 
testspeed; and a third area including all of the remaining area of the 
NTEzone.
    (iii) SPD in paragraph (b)(5)(i) of this section refers to percentof 
maximum test speed.
    (iv) See Figure B-4 for an illustration of this Not toExceed zone as 
follows:
[GRAPHIC] [TIFF OMITTED] TR08NO02.003


[[Page 627]]


    (c)(1) Upon request by the manufacturer, the Administratormay 
specify a narrower Not to Exceed Zone for an engine family at thetime of 
certification, provided that the narrower Not to Exceed Zoneincludes all 
speeds greater than 63 percent of maximum test speed andloads greater 
than 25 percent of maximum power at rated speed at whichthe engines are 
expected to normally operate in use.
    (2) At the time of certification, the Administrator may specify,or 
require the manufacturer to specify, a broader Not to Exceed Zonefor an 
engine family, provided that the broader Not to Exceed Zoneincludes only 
speeds greater than 63 percent of maximum test speed andloads greater 
than 25 percent of maximum power at rated speed at whichthe engines are 
expected to normally operate in use.
    (d) Testing conducted to determine compliance with the 
exhaustemission requirements of Sec. 94.8(e) may be conducted atany 
ambient air temperature or humidity outside the ranges specifiedin 
paragraph (a)(2) of this section, provided that emissionmeasurements are 
corrected to be equivalent to measurements within theranges specified in 
paragraph (a)(2) of this section. Correction ofemission measurements 
made in accordance with this paragraph (d) shallbe made in accordance 
with good engineering practice. The measurementsshall be corrected to be 
within the range using the minimum possiblecorrection.
    (e) Testing conducted under this section may not include 
enginestarting.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68344, Nov.8, 2002; 68 
FR 9784, Feb. 28, 2003; 70 FR 40458, July 13, 2005]



Sec. 94.107  Determination of maximum test speed.

    (a) Overview. This section specifies how to determinemaximum test 
speed from a lug curve. This maximum test speed is usedin Sec. Sec. 
94.105, 94.106, and Sec. 94.109(including the tolerances for engine 
speed specified inSec. 94.105).
    (b) Generation of lug curve. Prior to beginning emissiontesting, 
generate maximum measured brakepower versus engine speed datapoints 
using the applicable method specified in 40 CFR 1065.510. Thesedata 
points form the lug curve. It is not necessary to generate theentire lug 
curve. For the portion of the curve where power increaseswith increasing 
speed, it is not necessary to generate points withpower less than 90 
percent of the maximum power value. For the portionof the curve where 
power decreases with increasing speed, it is notnecessary to generate 
points with power less than 75 percent of themaximum power value.
    (c) Normalization of lug curve. (1) Identify the point(power and 
speed) on the lug curve at which maximum power occurs.
    (2) Normalize the power values of the lug curve by dividing themby 
the maximum power value identified in paragraph (b)(1) of thissection, 
and multiplying the resulting values by 100.
    (3) Normalize the engine speed values of the lug curve by 
dividingthem by the speed at which maximum power occurs, which is 
identifiedin paragraph (b)(1) of this section, and multiplying the 
resultingvalues by 100.
    (4) Maximum engine power is located on the normalized lug curve 
at100 percent power and 100 percent speed.
    (d) Determination of maximum test speed. Calculate themaximum test 
speed from the speedfactor analysis described in thisparagraph (d).
    (1) For a given combination of engine power and speed (i.e., agiven 
power/speed point), the speedfactor is the distance to thenormalized 
power/speed point from the zero power, zero speed point.The value of the 
speedfactor is defined as:
[GRAPHIC] [TIFF OMITTED] TR29DE99.005

    (2) Calculate speedfactors for the power/speed data points on thelug 
curve, and determine the maximum value.
    (3) Maximum test speed is the speed at which the maximum value 
forthe speedfactor occurs.
    (e) For constant-speed engines, rated speed is the maximum 
testspeed.
    (f) For Category 3 engines, manufacturers may choose to set 
themaximum

[[Page 628]]

test speed at the maximum in-use engine speed instead ofthe speed 
specified in Sec. 94.107(d).

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb.28, 2003; 70 
FR 40458, July 13, 2005]



Sec. 94.108  Test fuels.

    (a) Distillate diesel test fuel. (1) The diesel fuels fortesting 
Category 1 and Category 2 marine engines designed to operateon 
distillate diesel fuel shall be clean and bright, with pour andcloud 
points adequate for operability. The diesel fuel may containnonmetallic 
additives as follows: cetane improver, metal deactivator,antioxidant, 
dehazer, antirust, pour depressant, dye, dispersant, andbiocide. The 
diesel fuel shall also meet the specifications (asdetermined using 
methods incorporated by reference atSec. 94.5) in Table B-5 of this 
section, orsubstantially equivalent specifications approved by the 
Administrator,as follows:

               Table B-5--Federal Test FuelSpecifications
------------------------------------------------------------------------
              Item                 Procedure \1\            Value
------------------------------------------------------------------------
Cetane.........................  ASTM D 613-01....  40-48
Distillation Range:
    Initial boiling point,       ASTM D86-01......  171-204
     [deg]C.
    10% point, [deg]C..........  ASTM D 86-01.....  204-238
    50% point, [deg]C..........  ASTM D 86-01.....  243-282
    90% point, [deg]C..........  ASTM D 86-01.....  293-332
    End point, [deg]C..........  ASTM D 86-01.....  321-366
Flashpoint, [deg]C.............  ASTM D 93-02.....  54 minimum
Gravity, API...................  ASTM D 287-92....  32-37
Hydrocarbon composition:
    Aromatics, volume percent..  ASTM D 1319-02a    10 minimum
                                  or D5186-99.
    Olefins and Saturates        ASTM D1319-02a...  Remainder
     (paraffins and
     napththenes).
Total Sulfur, weight percent...  ASTM D 129-00 or   0.03-0.80
                                  D2622-98.
Viscosity at 38 [deg]C,          ASTM D445-01.....  2.0-3.2
 centistokes.
------------------------------------------------------------------------
\1\ All ASTM standards are incorporated by reference inSec.  94.5.

    (2) Other diesel fuels may be used for testing provided:
    (i) They are commercially available; and
    (ii) Information, acceptable to the Administrator, is provided 
toshow that only the designated fuel would be used in service; and
    (iii) Use of a fuel listed under paragraph (a)(1) of this 
sectionwould have a detrimental effect on emissions or durability; and
    (iv) Written approval from the Administrator of the 
fuelspecifications is provided prior to the start of testing.
    (3) The specification of the fuel to be used under paragraphs 
(a)(1), and (a)(2) of this section shall be reported in the 
applicationfor certification.
    (b) Other fuel types. For Category 1 and Category 2 enginesthat are 
designed to be capable of using a type of fuel (or mixedfuel) instead of 
or in addition to distillate diesel fuel (e.g.,natural gas, methanol, or 
nondistillate diesel), and that are expectedto use that type of fuel (or 
mixed fuel) in service:
    (1) A commercially available fuel of that type shall be used 
forexhaust emission testing. The manufacturer shall propose for 
theAdministrator's approval a set of test fuel specifications that 
takeinto account the engine design and the properties of 
commerciallyavailable fuels. The Administrator may require testing on 
each fuel ifit is designed to operate on more than one fuel. These test 
fuelspecifications shall be reported in the application for 
certification.
    (2) [Reserved]
    (c) Service accumulation fuel. Fuel used for serviceaccumulation 
shall be representative of the typical fuel expected tobe used by the 
engines in service.
    (d) Correction for sulfur. (1) Particulate emissionmeasurements from 
Category 1 or Category 2 engines without exhaustaftertreatment obtained 
using a diesel fuel containing more than 0.40weight percent sulfur may 
be adjusted

[[Page 629]]

to a sulfur content of 0.40weight percent.
    (2) Adjustments to the particulate measurement shall be made 
usingthe following equation:

PMadj=PM-[BSFC *0.0917 *(FSF-0.0040)]

Where:

PMadj=adjusted measured PM level [g/kW-hr]
PM=measured weighted PM level [g/KW-hr]
BSFC=measured brake specific fuel consumption [g/KW-hr]
FSF=fuel sulfur weight fraction

    (e) Test fuel for Category 3 engines. For testing Tier 1engines, use 
test fuels meeting the specifications listed in the AnnexVI Technical 
Code (incorporated by reference in Sec. 94.5).

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68345, Nov.8, 2002; 68 
FR 9784, Feb. 28, 2003]

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.108 was 
amended by adding paragraph (a)(4) andrevising paragraph (d), effective 
July 7, 2008. For the convenience ofthe user, the added and revised text 
is set forth as follows:



Sec. 94.108  Test fuels.

    (a) * * *
    (4) Manufacturers may perform testing using the low-sulfur 
dieseltest fuel or the ultra low-sulfur diesel test fuel specified in 40 
CFRpart 1065.

                                * * * * *

    (d) Correction for sulfur--(1) High sulfur fuel.(i) Particulate 
emission measurements from Category 1 or Category 2engines without 
exhaust aftertreatment obtained using a diesel fuelcontaining more than 
0.40 weight percent sulfur may be adjusted to asulfur content of 0.40 
weight percent.
    (ii) Adjustments to the particulate measurement for using highsulfur 
fuel shall be made using the following equation:

PMadj=PM-[BSFC x 0.0917 x(FSF-0.0040)]

Where:
PMadj=adjusted measured PM level [g/kW-hr]
PM=measured weighted PM level [g/kW-hr]
BSFC=measured brake specific fuel consumption [g/kW-hr]
FSF=fuel sulfur weight fraction

    (2) Low sulfur fuel. (i) Particulate emission measurementsfrom 
Category 1 or Category 2 engines without exhaust aftertreatmentobtained 
using diesel fuel containing less than 0.03 weight percentsulfur shall 
be adjusted to a sulfur content of 0.20 weight percent.
    (ii) Adjustments to the particulate measurement for using ultralow-
sulfur fuel shall be made using the following equation:

PMadj=PM+[BSFC x 0.0917 x (0.0020-FSF)]

Where:
PMadj=adjusted measured PM level [g/kW-hr]
PM=measured weighted PM level [g/kW-hr]
BSFC=measured brake specific fuel consumption [g/kW-hr]
FSF=fuel sulfur weight fraction

                                * * * * *



Sec. 94.109  Test procedures for Category 3 marine engines.

    (a) Gaseous emissions shall be measured using the test cycles 
andprocedures specified by Section 5 of the Annex VI Technical 
Code(incorporated by reference in Sec. 94.5), except asotherwise 
specified in this paragraph (a).
    (1) The inlet air and exhaust restrictions shall be set at 
theaverage in-use levels.
    (2) Measurements are valid only for sampling periods in which 
thetemperature of the charge air entering the engine is within 3 
[deg]Cof the temperature that would occur in-use under ambient 
conditions(temperature, pressure, and humidity) identical to the 
testconditions. You may measure emissions within larger discrepancies, 
butyou may not use those measurements to demonstrate compliance.
    (3) Engine coolant and engine oil temperatures shall be equivalentto 
the temperatures that would occur in-use under ambient 
conditionsidentical to the test conditions.
    (4) Exhaust flow rates shall be calculated using measured fuelflow 
rates.
    (5) Standards used for calibration shall be traceable to 
NISTstandards. (Other national standards may be used if they have 
beenshown to be equivalent to NIST standards.)
    (6) Certification tests may be performed at any 
representativepressure and humidity levels. Certification tests may be 
performed atany ambient air temperature from 13 [deg]C to 30 [deg]C and 
anycharge air cooling water temperature from 17 [deg]C to 27 
[deg]C.These limits apply instead of the limits specified in section 
5.2.1 ofthe Annex VI Technical Code. Correct emissions for test 
conditionsusing the corrections specified in

[[Page 630]]

section 5.12.3 of the Annex VITechnical Code.
    (7) Test cycles shall be denormalized based on the maximum testspeed 
described in Sec. 94.107.
    (b) Analyzers meeting the specifications of either 40 CFR part1065, 
subpart C, or ISO 8178-1 (incorporated by reference inSec. 94.5) shall 
be used to measure THC and CO.
    (c) The Administrator may specify changes to the provisions 
ofparagraph (a) of this section that are necessary to comply with 
thegeneral provisions of Sec. 94.102.

[68 FR 9785, Feb. 28, 2003, as amended at 70 FR 40458, July13, 2005]



                   Subpart C_Certification Provisions



Sec. 94.201  Applicability.

    The requirements of this subpart are applicable to manufacturersof 
engines subject to the standards of subpart A of this part.



Sec. 94.202  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 94.203  Application for certification.

    (a) For each engine family that complies with all 
applicablestandards and requirements, the manufacturer shall submit to 
theAdministrator a completed application for a certificate of 
conformity.
    (b) The application shall be approved and signed by the 
authorizedrepresentative of the manufacturer.
    (c) The application shall be updated and corrected by 
amendment,where necessary, as provided for in Sec. 94.210 toaccurately 
reflect the manufacturer's production.
    (d) Each application shall include all the following information:
    (1)(i) A description of the basic engine design, including but 
notlimited to, the engine family specifications, the provisions of 
whichare contained in Sec. 94.204.
    (ii) A list of distinguishable configurations to be included inthe 
engine family.
    (2) An explanation of how the emission control system 
operates,including detailed descriptions of:
    (i) All emission control system components;
    (ii) The injection timing map or maps (i.e., degrees before orafter 
top-dead-center), and any functional dependence of such timingon other 
operational parameters (e.g., engine coolant temperature orengine 
speed);
    (iii) Each auxiliary emission control device (AECD); and
    (iv) All fuel system components to be installed on any productionor 
test engine(s).
    (3) A description of the test engine.
    (4) Special or alternate test procedures, if applicable.
    (5) A description of the operating cycle and the period ofoperation 
necessary to accumulate service hours on the test engine andstabilize 
emission levels.
    (6) A description of all adjustable operating parameters 
(e.g.,injection timing and fuel rate), including all the following:
    (i) The nominal or recommended setting and the associatedproduction 
tolerances.
    (ii) The physically adjustable range (Note: if this is differentthan 
the intended adjustable range, describe why these are different).
    (iii) The limits or stops used to limit adjustable ranges.
    (iv) Production tolerances of the limits or stops used toestablish 
each physically adjustable range.
    (v) Information relating to the reason that the physical limits 
orstops used to establish the physically adjustable range of 
eachparameter, or any other means used to inhibit adjustment, are the 
mosteffective means possible of preventing adjustment of parameters 
tosettings outside the manufacturer's specified adjustable ranges on in-
use engines.
    (7) For families participating in the averaging, banking, andtrading 
program, the information specified in subpart D of this part.
    (8) Projected U.S.-directed production volume information for 
eachconfiguration.
    (9) A description of the test equipment and fuel used.
    (10) All test data obtained by the manufacturer on each testengine.

[[Page 631]]

    (11) The intended useful life period for the engine family,in 
accordance with Sec. 94.9(a).
    (12) The intended deterioration factors for the engine family, 
inaccordance with Sec. 94.218.
    (13) All information required for EPA to interpret all messagesand 
parameters broadcast on an engine's controller area network,including 
but not limited to message or parameter identification,scaling, limit, 
offset, and transfer function. (The manufacturer mayreference publicly 
released controller area network standards whereapplicable. The format 
of this information shall be provided in aformat similar to publicly 
released documents pertaining to controllerarea network standards.)
    (14) (i) For Category 1 and Category 2 engines, a statement thatthe 
all the engines included in the engine family comply with the NotTo 
Exceed standards specified in Sec. 94.8(e) when operatedunder all 
conditions which may reasonably be expected to beencountered in normal 
operation and use; the manufacturer also mustprovide a detailed 
description of all testing, engineering analyses,and other information 
which provides the basis for this statement.
    (ii) [Reserved]
    (15) An unconditional statement certifying that all enginesincluded 
in the engine family comply with all requirements of thispart and the 
Clean Air Act.
    (16) A statement indicating duty-cycle and application of theengine 
(e.g., used to propel planing vessels, use to propel vesselswith 
variable-pitch propellers, constant-speed auxiliary,recreational, etc.).
    (e) At the Administrator's request, the manufacturer shall 
supplysuch additional information as may be required to evaluate 
theapplication.
    (f)(1) If the manufacturer submits some or all of the 
informationspecified in paragraph (d) of this section in advance of its 
fullapplication for certification, the Administrator shall review 
theinformation and make the determinations required inSec. 94.208 (d) 
within 90 days of the manufacturer'ssubmittal.
    (2) The 90-day decision period is exclusive of any elapsed 
timeduring which EPA is waiting for additional information requested 
froma manufacturer regarding an adjustable parameter (the 90-day 
periodresumes upon receipt of the manufacturer's response). For example, 
ifEPA requests additional information 30 days after the 
manufacturersubmits information under paragraph (f)(1) of this section, 
then theAdministrator would make a determination within 60 days of the 
receiptof the requested information from the manufacturer.
    (g)(1) The Administrator may modify the information 
submissionrequirements of paragraph (d) of this section, provided that 
all ofthe information specified therein is maintained by the 
manufacturer asrequired by Sec. 94.215, and amended, updated, or 
correctedas necessary.
    (2) For the purposes of this paragraph (g), Sec. 94.215includes all 
information specified in paragraph (d) of this section,whether or not 
such information is actually submitted to theAdministrator for any 
particular model year.
    (3) The Administrator may review a manufacturer's records at 
anytime. At the Administrator's discretion, this review may take 
placeeither at the manufacturer's facility or at another 
facilitydesignated by the Administrator.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002; 68 
FR 9785, Feb. 28, 2003]



Sec. 94.204  Designation of engine families.

    This section specifies the procedure and requirements for groupingof 
engines into engine families.
    (a) Manufacturers shall divide their engines into groupings 
ofengines which are expected to have similar emission 
characteristicsthroughout their useful life. Each group shall be defined 
as aseparate engine family.
    (b) For Category 1 marine engines, the following 
characteristicsdistinguish engine families:
    (1) Fuel;
    (2) Cooling method (including cooling medium);
    (3) Method of air aspiration;
    (4) Method of exhaust aftertreatment (for example, 
catalyticconverter or particulate trap);
    (5) Combustion chamber design;
    (6) Bore;

[[Page 632]]

    (7) Stroke;
    (8) Number of cylinders, (engines with aftertreatment devicesonly);
    (9) Cylinder arrangement (engines with aftertreatment devicesonly);
    (10) Fuel system configuration; and
    (11) Class (commercial or recreational).
    (c) For Category 2 marine engines, the following 
characteristicsdistinguish engine families:
    (1) The combustion cycle (e.g., diesel cycle);
    (2) The type of engine cooling employed (air-cooled or water-
cooled), and procedure(s) employed to maintain engine temperaturewithin 
desired limits (thermostat, on-off radiator fan(s), radiatorshutters, 
etc.);
    (3) The bore and stroke dimensions;
    (4) The approximate intake and exhaust event timing and 
duration(valve or port);
    (5) The location of the intake and exhaust valves (or ports);
    (6) The size of the intake and exhaust valves (or ports);
    (7) The overall injection, or as appropriate ignition, 
timingcharacteristics (i.e., the deviation of the timing curves from 
theoptimal fuel economy timing curve must be similar in degree);
    (8) The combustion chamber configuration and the surface-to-
volumeratio of the combustion chamber when the piston is at top dead 
centerposition, using nominal combustion chamber dimensions;
    (9) The location of the piston rings on the piston;
    (10) The method of air aspiration (turbocharged, 
supercharged,naturally aspirated, Roots blown);
    (11) The turbocharger or supercharger general 
performancecharacteristics (e.g., approximate boost pressure, 
approximateresponse time, approximate size relative to engine 
displacement);
    (12) The type of air inlet cooler (air-to-air, air-to-
liquid,approximate degree to which inlet air is cooled);
    (13) The intake manifold induction port size and configuration;
    (14) The type of fuel and fuel system configuration;
    (15) The configuration of the fuel injectors and 
approximateinjection pressure;
    (16) The type of fuel injection system controls (i.e., mechanicalor 
electronic);
    (17) The type of smoke control system;
    (18) The exhaust manifold port size and configuration; and
    (19) The type of exhaust aftertreatment system (oxidationcatalyst, 
particulate trap), and characteristics of the aftertreatmentsystem 
(catalyst loading, converter size vs engine size).
    (d) Upon request by the manufacturer, engines that are eligible tobe 
included in the same engine family based on the criteria inparagraph (b) 
or (c) of this section may be divided into differentengine families. 
This request must be accompanied by information themanufacturer believes 
supports the use of these different enginefamilies.
    (e) Upon request by the manufacturer, the Administrator may 
allowengines that would be required to be grouped into separate 
enginefamilies based on the criteria in paragraph (b) or (c) of this 
sectionto be grouped into a single engine family if the 
manufacturerdemonstrates that the engines will have similar 
emissioncharacteristics; however, recreational and commercial engines 
may notbe grouped in the same engine family. This request must be 
accompaniedby emission information supporting the appropriateness of 
suchcombined engine families.
    (f) Category 3 engines shall be grouped into engine families basedon 
the criteria specified in Section 4.3 of the Annex VI TechnicalCode 
(incorporated by reference in Sec. 94.5), except asallowed in 
paragraphs (d) and (e) of this section.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002; 68 
FR 9785, Feb. 28, 2003]



Sec. 94.205  Prohibited controls, adjustable parameters.

    (a) Any system installed on, or incorporated in, a new engine 
toenable the engine to conform to the standards contained in this part:
    (1) Shall not cause a violation of the general standards ofSec. 
94.7.
    (2) Shall function during all in-use operation, except asotherwise 
allowed by this part.

[[Page 633]]

    (b)(1) Category 1 marine engines equipped with adjustableparameters 
must comply with all requirements of this subpart for anyadjustment in 
the physically adjustable range.
    (2) Category 2 and Category 3 marine engines equipped withadjustable 
parameters must comply with all requirements of thissubpart for any 
adjustment in the approved adjustable range.
    (c) The Administrator may require that adjustable parameters beset 
to any specification within its adjustable range forcertification, 
selective enforcement audit, or in-use testing todetermine compliance 
with the requirements of this subpart.
    (d) In specifying the adjustable range of each adjustableparameter 
on a new engine, the manufacturer, shall:
    (1) Ensure that safe engine operating characteristics areavailable 
within that range, as required by section 202(a)(4) of theClean Air Act, 
taking into consideration the production tolerances;and
    (2) To the maximum extent practicable, limit the physical range 
ofadjustability to that which is necessary for proper operation of 
theengine.
    (e) Tier 1 Category 3 marine engines shall be adjusted accordingto 
the manufacturer's specifications for testing.
    (f) For Category 3 marine engines, manufacturers must specify inthe 
maintenance instructions how to adjust the engines to achieveemission 
performance equivalent to the performance demonstrated underthe 
certification test conditions. This must address all 
necessaryadjustments, including those required to address differences in 
fuelquality or ambient temperatures. For example, equivalent 
emissionsperformance can be measured relative to optimal engine 
performancethat could be achieved in the absence of emission 
standards(i.e., the calibration that result in the lowest 
fuelconsumption and/or maximum firing pressure). In this 
example,adjustments that achieved the same percent reduction 
inNOX emissions from the optimal calibration would 
beconsidered to be equivalent. Alternatively, if the engine 
usesinjection timing retard and EGR to reduce emissions, then 
retardingtiming the same number of degrees (relative to optimal 
engineperformance) and using the same rate of EGR at the 
differentconditions would be considered to be equivalent.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9785, Feb.28, 2003]



Sec. 94.206  Required information.

    (a) The manufacturer shall perform the tests required by 
theapplicable test procedures, and submit to the Administrator 
theinformation required by this section: Provided, that ifrequested by 
the manufacturer, the Administrator may waive anyrequirement of this 
section for testing of engines for which therequired emission data are 
otherwise available.
    (b) The manufacturer shall submit exhaust emission 
deteriorationfactors, with supporting data. The determination of the 
deteriorationfactors shall be conducted in accordance with Sec. 94.218 
toensure that the engines covered by a certificate issued underSec. 
94.208 will meet all of the emission standards inSec. 94.8 in use for 
the useful life of the engine.
    (c) The manufacturer shall submit emission data on such 
enginestested in accordance with the applicable test procedures of 
Subpart Bof this part. These data shall include zero hour data, if 
generated.In lieu of providing the emission data required by paragraph 
(a) ofthis section, the Administrator may, upon request by the 
manufacturer,allow the manufacturer to demonstrate (on the basis of 
previousemission tests, development tests, or other testing information) 
thatthe engine will conform with the applicable emission standards 
ofSec. 94.8.
    (d) The manufacturer shall submit a statement that the engines 
forwhich certification is requested conform to the requirements inSec. 
94.7 and that the descriptions of tests performed toascertain compliance 
with the general standards inSec. 94.7, and the data derived from such 
tests, areavailable to the Administrator upon request.
    (e) The manufacturer shall submit a statement that the emissiondata 
engine used to demonstrate compliance with the applicablestandards of 
this part is in all material respects as described in themanufacturer's 
application for certification; that it has been

[[Page 634]]

tested in accordance with the applicable test proceduresutilizing the 
fuels and equipment described in the application forcertification; and 
that on the basis of such tests, the engine familyconforms to the 
requirements of this part. If, on the basis of thedata supplied and any 
additional data as required by theAdministrator, the Administrator 
determines that the test engine wasnot as described in the application 
for certification or was nottested in accordance with the applicable 
test procedures utilizing thefuels and equipment as described in the 
application for certification,the Administrator may make the 
determination that the engine does notmeet the applicable standards. If 
the Administrator makes such adetermination, he/she may withhold, 
suspend, or revoke the certificateof conformity under Sec. 94.208 
(c)(3)(i).



Sec. 94.207  Special test procedures.

    (a) Establishment of special test procedures by EPA. 
TheAdministrator may, on the basis of written application by 
amanufacturer, establish special test procedures other than those 
setforth in this part, for any engine that the Administrator 
determinesis not susceptible to satisfactory testing under the specified 
testprocedures set forth in Subpart B of this part.
    (b) Use of alternate test procedures by a manufacturer. (1)A 
manufacturer may elect to use an alternate test procedure, providedthat 
it is equivalent to the specified procedures with respect to 
thedemonstration of compliance, its use is approved in advance by 
theAdministrator, and the basis for the equivalence with the 
specifiedtest procedures is fully described in the manufacturer's 
application.
    (2) The Administrator may reject data generated under alternatetest 
procedures if the data do not correlate with data generated underthe 
specified procedures.



Sec. 94.208  Certification.

    (a) If, after a review of the application for certification, 
testreports and data acquired from an engine or from a development 
dataengine, and any other information required or obtained by EPA, 
theAdministrator determines that the application is complete and that 
theengine family meets the requirements of the Act and this part, he/
shewill issue a certificate of conformity with respect to such 
enginefamily, except as provided by paragraph (c)(3) of this section. 
Thecertificate of conformity is valid for each engine family from 
thedate of issuance by EPA until 31 December of the model year 
orcalendar year for which it is issued and upon such terms andconditions 
as the Administrator deems necessary or appropriate toensure that the 
production engines covered by the certificate willmeet the requirements 
of the Act and of this part.
    (b) [Reserved]
    (c)(1) The manufacturer shall bear the burden of establishing tothe 
satisfaction of the Administrator that the conditions upon whichthe 
certificates were issued were satisfied or excused.
    (2) The Administrator will determine whether the test dataincluded 
in the application represents all engines of the enginefamily.
    (3) Notwithstanding the fact that any engine(s) may comply withother 
provisions of this subpart, the Administrator may withhold ordeny the 
issuance of any certificate of conformity, or suspend orrevoke any such 
certificate(s) which has (have) been issued withrespect to any such 
engine(s) if:
    (i) The manufacturer submits false or incomplete information inits 
application for certification thereof;
    (ii) The manufacturer renders inaccurate any test data which 
itsubmits pertaining thereto or otherwise circumvents the intent of 
theAct, or of this part with respect to such engine;
    (iii) Any EPA Enforcement Officer is denied access on the 
termsspecified in Sec. 94.215 to any facility or portion thereofwhich 
contains any of the following:
    (A) An engine which is scheduled to undergo emissions testing, 
orwhich is undergoing emissions testing, or which has undergoneemissions 
testing; or
    (B) Any components used or considered for use in the 
construction,modification or buildup of any engine which is scheduled to 
undergoemissions testing, or which is undergoing emissions

[[Page 635]]

testing, orwhich has undergone emissions testing for purposes of 
emissionscertification; or
    (C) Any production engine which is or will be claimed by 
themanufacturer to be covered by the certificate; or
    (D) Any step in the construction of the engine; or
    (E) Any records, documents, reports or histories required by 
thispart to be kept concerning any of the items listed in paragraphs 
(c)(3)(iii)(A) through (D) of this section; or
    (iv) Any EPA Enforcement Officer is denied ``reasonableassistance'' 
(as defined in Sec. 94.215).
    (4) In any case in which a manufacturer knowingly submits false 
orinaccurate information or knowingly renders inaccurate or invalid 
anytest data or commits any other fraudulent acts and such 
actscontribute substantially to the Administrator's decision to issue 
acertificate of conformity, the Administrator may deem such 
certificatevoid ab initio.
    (5) In any case in which certification of an engine is to 
bewithheld, denied, revoked or suspended under paragraph (c)(3) of 
thissection, and in which the Administrator has presented to 
themanufacturer involved reasonable evidence that a violation ofSec. 
94.215 in fact occurred, the manufacturer, if it wishesto contend that, 
even though the violation occurred, the engine inquestion was not 
involved in the violation to a degree that wouldwarrant withholding, 
denial, revocation or suspension of certificationunder paragraph (c)(3) 
of this section, shall have the burden ofestablishing that contention to 
the satisfaction of the Administrator.
    (6) Any revocation, suspension, or voiding of certification 
underparagraph (c)(3) of this section shall:
    (i) Be made only after the manufacturer concerned has been offeredan 
opportunity for a hearing conducted in accordance withSec. 94.216; and
    (ii) Extend no further than to forbid the introduction intocommerce 
of engines previously covered by the certification which arestill in the 
hands of the manufacturer, except in cases of such fraudor other 
misconduct that makes the certification invalid ab initio.
    (7) The manufacturer may request, within 30 days of 
receivingnotification, that any determination made by the Administrator 
underparagraph (c)(3) of this section to withhold or deny certification 
bereviewed in a hearing conducted in accordance withSec. 94.216. The 
request shall be in writing, signed by anauthorized representative of 
the manufacturer and shall include astatement specifying the 
manufacturer's objections to theAdministrator's determinations, and data 
in support of suchobjections. If the Administrator finds, after a review 
of the requestand supporting data, that the request raises a substantial 
factualissue, he/she will grant the request with respect to such issue.
    (d) In approving an application for certification, theAdministrator 
may specify or require the manufacturer to specify:
    (1) A broader range of adjustability than recommended by 
themanufacturer for those engine parameters which are subject 
toadjustment, if the Administrator determines that it is not 
reasonableto expect the parameter to be kept adjusted within the 
recommendedrange in use;
    (2) A longer useful life period, if the Administrator determinesthat 
the useful life of the engines in the engine family, as definedin Sec. 
94.2, is longer than the period specified by themanufacturer;
    (3) Larger deterioration factors, if the Administrator 
determinesthat the deterioration factors specified by the manufacturer 
do notmeet the requirements of Sec. 94.218; and/or
    (4) A broader Not to Exceed Zone subject to the provisions ofSec. 
94.106(b).
    (e) Within 30 days following receipt of notification of 
theAdministrator's determinations made under paragraph (d) of 
thissection, the manufacturer may request a hearing on the 
Administrator'sdeterminations. The request shall be in writing, signed 
by anauthorized representative of the manufacturer and shall include 
astatement specifying the manufacturer's objections to 
theAdministrator's determinations and data in support of such 
objections.If, after review of the request and supporting data, the 
Administratorfinds that the request raises a

[[Page 636]]

substantial factual issue, themanufacturer shall be provided with a 
hearing in accordance withSec. 94.216 with respect to such issue.

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.208 was 
amended by revising paragraph (a), effectiveJuly 7, 2008. For the 
convenience of the user, the revised text is setforth as follows:



Sec. 94.208  Certification.

    (a) If, after a review of the application for certification, 
testreports and data acquired from an engine or from a development 
dataengine, and any other information required or obtained by EPA, 
theAdministrator determines that the application is complete and that 
theengine family meets the requirements of the Act and this part, he/
shewill issue a certificate of conformity with respect to such 
enginefamily, except as provided by paragraph (c)(3) of this section. 
Thecertificate of conformity is valid for each engine family 
startingwith the indicated effective date, but it is not valid for 
anyproduction after December 31 of the model year for which it is 
issued.The certificate of conformity is valid upon such terms and 
conditionsas the Administrator deems necessary or appropriate to ensure 
that theproduction engines covered by the certificate will meet 
therequirements of the Act and of this part.

                                * * * * *



Sec. 94.209  Special provisions for post-manufacture marinizers and small-volume manufacturers.

    The provisions of this section apply for Category 1 and Category 
2engines, but not for Category 3 engines.
    (a) Broader engine families. Instead of the requirements ofSec. 
94.204, an engine family may consist of any enginessubject to the same 
emission standards. This does not change any ofthe requirements of this 
part for showing that an engine family meetsemission standards. To be 
eligible to use the provisions of thisparagraph (a), the manufacturer 
must demonstrate one of the following:
    (1) It is a post-manufacture marinizer and that the base enginesused 
for modification have a valid certificate of conformity issuedunder 40 
CFR part 89 or 40 CFR part 92 or the heavy-duty engineprovisions of 40 
CFR part 86.
    (2) It is a small-volume manufacturer.
    (b) Hardship relief. Post-manufacture marinizers, small-volume 
manufacturers, and small-volume boat builders may take any ofthe 
otherwise prohibited actions identified inSec. 94.1103(a)(1) if 
approved in advance by theAdministrator, subject to the following 
requirements:
    (1) Application for relief must be submitted to the 
DesignatedOfficer in writing prior to the earliest date in which the 
applyingmanufacturer would be in violation of Sec. 94.1103. 
Themanufacturer must submit evidence showing that the requirements 
forapproval have been met.
    (2) The conditions causing the impending violation must not 
besubstantially the fault of the applying manufacturer.
    (3) The conditions causing the impending violation must 
jeopardizethe solvency of the applying manufacturer if relief is not 
granted.
    (4) The applying manufacturer must demonstrate that no 
otherallowances under this part will be available to avoid the 
impendingviolation.
    (5) Any relief may not exceed one year beyond the date relief 
isgranted.
    (6) The Administrator may impose other conditions on the grantingof 
relief including provisions to recover the lost environmentalbenefit.
    (7) The manufacturer must add a permanent, legible label, writtenin 
block letters in English, to a readily visible part of each 
engineexempted under this paragraph (b).
    This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROLINFORMATION''.
    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model yearof 
the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR94.209(b) 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (c) Extension of deadlines. Small-volume manufacturers mayuse the 
provisions of 40 CFR 1068.250 to ask for an extension of adeadline to 
meet emission standards. We may require that you useavailable base 
engines that have been certified to emission standardsfor land-based 
engines until you

[[Page 637]]

are able to produce enginescertified to the requirements of this part.

[67 FR 68346, Nov. 8, 2002, as amended at 68 FR 9786, Feb. 28,2003]

    Effective Date Note: At 73 FR 37196, June 30, 2008,Sec. 94.209 was 
amended by revising paragraph (a)introductory text, effective July 7, 
2008. For the convenience of theuser, the revised text is set forth as 
follows:



Sec. 94.209  Special provisions for post-manufacture marinizers and 
          small-volume manufacturers.

                                * * * * *

    (a) Broader engine families. Instead of the requirements ofSec. 
94.204, an engine family may consist of any or all of amanufacturer's 
engines within a given category. This does not changeany of the 
requirements of this part for showing that an engine familymeets 
emission standards. To be eligible to use the provisions of 
thisparagraph (a), the manufacturer must demonstrate one of the 
following:

                                * * * * *



Sec. 94.210  Amending the application and certificate of conformity.

    (a) The manufacturer shall notify the Administrator when changesto 
information required to be described in the application forcertification 
are to be made to a product line covered by acertificate of conformity. 
This notification shall include a requestto amend the application or the 
existing certificate of conformity.Except as provided in paragraph (e) 
of this section, no manufacturershall make said changes or produce said 
engines prior to receivingapproval from the Administrator.
    (b) A manufacturer's request to amend the application or theexisting 
certificate of conformity shall include the followinginformation:
    (1) A full description of the change to be made in production, orof 
the engines to be added;
    (2) Engineering evaluations or data showing that the engines 
asmodified or added will comply with all applicable emission 
standards;and
    (3) A determination whether the manufacturer's original test 
fleetselection is still appropriate, and if the original test 
fleetselection is determined not to be appropriate, test fleet 
selection(s)representing the engines changed or added which would have 
beenrequired if the engines had been included in the original 
applicationfor certification.
    (c) The Administrator may require the manufacturer to performtests 
on the engine representing the engine to be added or changed.
    (d)(1) Based on the description of the amendment and data 
derivedfrom such testing as the Administrator may require or conduct, 
theAdministrator will determine whether the change or addition 
wouldstill be covered by the certificate of conformity then in effect.
    (2) If the Administrator determines that the change or newengine(s) 
meets the requirements of this part and the Act, theappropriate 
certificate of conformity shall be amended.
    (3) If the Administrator determines that the changed engine(s)does 
not meet the requirements of this part and the Act, thecertificate of 
conformity will not be amended. The Administrator shallprovide a written 
explanation to the manufacturer of the decision notto amend the 
certificate. The manufacturer may request a hearing on adenial.
    (e) A manufacturer may make changes in or additions to 
productionengines concurrently with the notification to the 
Administrator, asrequired by paragraph (a) of this section, if the 
manufacturercomplies with the following requirements:
    (1) In addition to the information required in paragraph (b) ofthis 
section, the manufacturer shall supply supporting documentation,test 
data, and engineering evaluations as appropriate to demonstratethat all 
affected engines will still meet applicable emissionstandards.
    (2) If, after a review, the Administrator determines 
additionaltesting is required, the manufacturer shall provide the 
required testdata within 30 days or cease production of the affected 
engines.
    (3) If the Administrator determines that the affected engines donot 
meet applicable requirements, the Administrator will notify 
themanufacturer to cease production of the affected engines and to 
recalland correct at no expense to the owner all affected engines 
previouslyproduced.

[[Page 638]]

    (4) Election to produce engines under this paragraph (e) willbe 
deemed to be a consent to recall all engines that the 
Administratordetermines do not meet applicable standards and to cause 
suchnonconformity to be remedied at no expense to the owner.



Sec. 94.211  Emission-related maintenance instructions for purchasers.

    (a) The manufacturer shall furnish or cause to be furnished to 
theultimate purchaser of each new engine, subject to the 
standardsprescribed in Sec. 94.8, written instructions for the 
propermaintenance and use of the engine as are reasonable and necessary 
toassure the proper functioning of the emissions control 
system,consistent with the applicable provisions of paragraph (b) of 
thissection.
    (1) The maintenance and use instructions required by this 
sectionshall be clear and easily understandable.
    (2) The maintenance instructions required by this section 
shallcontain a general description of the documentation that 
woulddemonstrate for warranty purposes that the ultimate purchaser or 
anysubsequent owner had complied with the instructions.
    (3) For Category 3 engines, the manufacturer must provide inboldface 
type on the first page of the written maintenanceinstructions notice 
that Sec. 94.1004 requires that theemissions-related maintenance be 
performed as specified in theinstructions (or equivalent).
    (b)(1) The manufacturer must provide in boldface type on the 
firstpage of the written maintenance instructions notice that 
maintenance,replacement, or repair of the emission control devices and 
systems maybe performed by any engine repair establishment or 
individual.
    (2) The instructions under paragraph (b)(1) of this section willnot 
include any condition on the ultimate purchaser's or owner'susing, in 
connection with such engine, any component or service (otherthan a 
component or service provided without charge under the terms ofthe 
purchase agreement) which is identified by brand, trade, orcorporate 
name. Such instructions also will not directly or indirectlydistinguish 
between service performed by any other serviceestablishments with which 
such manufacturer has a commercialrelationship and service performed by 
independent vessel or enginerepair facilities with which such 
manufacturer has no commercialrelationship.
    (3) The prohibition of paragraph (b)(2) of this section may bewaived 
by the Administrator if:
    (i) The manufacturer demonstrates to the Administrator'ssatisfaction 
that the engine will function properly only if thecomponent or service 
so identified is used in connection with suchengine; and
    (ii) The Administrator finds that such a waiver is in the 
publicinterest.
    (c) The manufacturer shall provide to the Administrator, no 
laterthan the time of the submission required by Sec. 94.203, acopy of 
the emission-related maintenance instructions that themanufacturer 
proposes to supply to the ultimate purchaser or owner inaccordance with 
this section. The Administrator will review suchinstructions to 
determine whether they are reasonable and necessary toensure the proper 
functioning of the engine's emission controlsystems. If the 
Administrator determines that such instructions arenot reasonable and 
necessary to ensure the proper functioning of theemission control 
systems, he/she may disapprove the application forcertification or may 
require that the manufacturer modify theinstructions.
    (d) Any revision to the maintenance instructions which will 
affectemissions shall be supplied to the Administrator at least 30 
daysbefore being supplied to the ultimate purchaser or owner unless 
theAdministrator consents to a lesser period of time, and is subject 
tothe provisions of Sec. 94.210.
    (e) This paragraph (e) specifies emission-related 
scheduledmaintenance for purposes of obtaining durability data for 
marineengines. The maintenance intervals specified in this paragraph 
areminimum intervals.
    (1) All emission-related scheduled maintenance for purposes 
ofobtaining durability data must occur at the same or longer hours ofuse 
intervals as those specified in the manufacturer's 
maintenanceinstructions furnished to the ultimate purchaser of the 
engine underparagraph (a) of this section.

[[Page 639]]

This maintenance schedule may beupdated as necessary throughout the 
testing of the engine, providedthat no maintenance operation is deleted 
from the maintenance scheduleafter the operation has been performed on 
the test equipment orengine.
    (2) Any emission-related maintenance which is performed onequipment, 
engines, subsystems, or components must be technologicallynecessary to 
ensure in-use compliance with the emission standards. Themanufacturer 
must submit data which demonstrate to the Administratorthat all of the 
emission-related scheduled maintenance which is to beperformed is 
technologically necessary. Scheduled maintenance must beapproved by the 
Administrator prior to being performed or beingincluded in the emission-
related maintenance instructions provided tothe purchasers under 
paragraph (a) of this section.
    (i) The Administrator may require longer maintenance intervalsthan 
those listed in paragraphs (e)(3) and (e)(4) of this sectionwhere the 
listed intervals are not technologically necessary.
    (ii) The Administrator may allow manufacturers to specify 
shortermaintenance intervals than those listed in paragraphs (e)(3) and 
(e)(4) of this section where technologically necessary for Category 
2engines.
    (iii) The maintenance intervals listed in paragraphs (e)(3) 
and(e)(4) of this section do not apply for Category 3.
    (3) The adjustment, cleaning, repair, or replacement of itemslisted 
in paragraphs (e)(3)(i) through (e)(3)(iii) of this sectionshall occur 
at 1,500 hours of use and at 1,500-hour intervalsthereafter.
    (i) Exhaust gas recirculation system-related filters and coolers.
    (ii) Positive crankcase ventilation valve.
    (iii) Fuel injector tips (cleaning only).
    (4) The adjustment, cleaning and repair of items in paragraphs 
(e)(4)(i) through (e)(4)(vii) of this section shall occur at 3,000 
hoursof use and at 3,000-hour intervals thereafter for engines with per-
cylinder displacement less than 1.2 liters, or at 4,500-hour 
intervalsthereafter for engines with per-cylinder displacement greater 
than orequal to 1.2 liters.
    (i) Fuel injectors.
    (ii) Turbocharger.
    (iii) Electronic engine control unit and its associated sensorsand 
actuators.
    (iv) Particulate trap or trap-oxidizer system (including 
relatedcomponents).
    (v) Exhaust gas recirculation system (including all relatedcontrol 
valves and tubing), except as otherwise provided in paragraph(e)(3)(i) 
of this section.
    (vi) Catalytic convertor.
    (vii) Any other add-on emission-related component (i.e., acomponent 
whose sole or primary purpose is to reduce emissions orwhose failure 
will significantly degrade emission control and whosefunction is not 
integral to the design and performance of the engine).
    (f) Scheduled maintenance not related to emissions which 
isreasonable and technologically necessary (e.g., oil change, oilfilter 
change, fuel filter change, air filter change, cooling 
systemmaintenance, adjustment of idle speed, governor, engine bolt 
torque,valve lash, injector lash, timing, lubrication of the exhaust 
manifoldheat control valve, etc.) may be performed on durability engines 
atthe least frequent intervals recommended by the manufacturer to 
theultimate purchaser, (e.g., not the intervals recommended forsevere 
service).
    (g) Adjustment of engine idle speed on emission data engines maybe 
performed once before the low-hour emission test point. Any otherengine, 
emission control system, or fuel system adjustment, repair,removal, 
disassembly, cleaning, or replacement on emission datavehicles shall be 
performed only with advance approval of theAdministrator.
    (h) For Category 1 and Category 2 engines, equipment, instruments,or 
tools may not be used to identify malfunctioning, maladjusted, 
ordefective engine components unless the same or equivalent 
equipment,instruments, or tools will be available to dealerships and 
otherservice outlets and are:
    (1) Used in conjunction with scheduled maintenance on 
suchcomponents; or

[[Page 640]]

    (2) Used subsequent to the identification of an enginemalfunction, 
as provided in paragraph (e) of this section for emissiondata engines; 
or
    (3) Specifically authorized by the Administrator.
    (i) All test data, maintenance reports, and required 
engineeringreports shall be compiled and provided to the Administrator 
inaccordance with Sec. 94.215.
    (j)(1) The components listed in paragraphs (j)(1)(i) through 
(j)(1)(vi) of this section are defined as critical emission-
relatedcomponents.
    (i) Catalytic convertor.
    (ii) Electronic engine control unit and its associated sensors 
andactuators.
    (iii) Exhaust gas recirculation system (including all 
relatedfilters, coolers, control valves, and tubing).
    (iv) Positive crankcase ventilation valve.
    (v) Particulate trap or trap-oxidizer system.
    (vi) Any other add-on emission-related component (i.e., acomponent 
whose sole or primary purpose is to reduce emissions orwhose failure 
will significantly degrade emission control and whosefunction is not 
integral to the design and performance of the engine).
    (2) All critical emission-related scheduled maintenance must havea 
reasonable likelihood of being performed in use. For Category 1 
andCategory 2 engines, the manufacturer must show the 
reasonablelikelihood of such maintenance being performed in-use. 
Criticalemission-related scheduled maintenance items which satisfy one 
of theconditions defined in paragraphs (j)(2)(i) through (j)(2)(vi) of 
thissection will be accepted as having a reasonable likelihood of 
beingperformed in use.
    (i) Data are presented which establish for the Administrator 
aconnection between emissions and engine performance such that 
asemissions increase due to lack of maintenance, vehicle performancewill 
simultaneously deteriorate to a point unacceptable for typicaloperation.
    (ii) Survey data are submitted which adequately demonstrate to 
theAdministrator with an 80 percent confidence level that 80 percent 
ofsuch engines already have this critical maintenance item performed in-
use at the recommended interval(s).
    (iii) A clearly displayed visible signal system approved by 
theAdministrator is installed to alert the equipment operator 
thatmaintenance is due. A signal bearing the message 
``maintenanceneeded'' or ``check engine,'' or a similar messageapproved 
by the Administrator, shall be actuated at the appropriateusage point or 
by component failure. This signal must be continuouswhile the engine is 
in operation and not be easily eliminated withoutperformance of the 
required maintenance. Resetting the signal shall bea required step in 
the maintenance operation. The method for resettingthe signal system 
shall be approved by the Administrator. The systemmust not be designed 
to deactivate upon the end of the useful life ofthe engine or 
thereafter.
    (iv) A manufacturer may desire to demonstrate through a surveythat a 
critical maintenance item is likely to be performed without avisible 
signal on a maintenance item for which there is no prior in-use 
experience without the signal. To that end, the manufacturer mayin a 
given model year market up to 200 randomly selected engines percritical 
emission-related maintenance item without such visiblesignals, and 
monitor the performance of the critical maintenance itemby the owners to 
show compliance with paragraph (j)(2)(ii) of thissection. This option is 
restricted to two consecutive model years andmay not be repeated until 
any previous survey has been completed. Ifthe critical maintenance 
involves more than one engine family, thesample will be sales weighted 
to ensure that it is representative ofall the families in question.
    (v) The manufacturer provides the maintenance free of charge, 
andclearly informs the customer that the maintenance is free in 
theinstructions provided under paragraph (a) of this section.
    (vi) The manufacturer uses any other method which theAdministrator 
approves as establishing a reasonable likelihood thatthe critical 
maintenance will be performed in-use.

[[Page 641]]

    (3) Visible signal systems used under paragraph (j)(2)(iii)of this 
section are considered an element of design of the emissioncontrol 
system. Therefore, disabling, resetting, or otherwiserendering such 
signals inoperative without also performing theindicated maintenance 
procedure is a prohibited act.
    (k) For Category 3 engines, the manufacturer must provide 
theultimate purchaser with a Technical File meeting the specifications 
ofsection 2.4 of the Annex VI Technical Code (incorporated by 
referencein Sec. 94.5). The maintenance instructions required by 
thispart to be provided by manufacturer may be included in this 
TechnicalFile. The manufacturer must provide a copy of this Technical 
File toEPA upon request.
    (l) Owners and operators of Category 3 engines shall transfer 
themaintenance instructions to subsequent owners and operators of 
theengine upon sale or transfer of the engine or vessel.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb.28, 2003; 70 
FR 40458, July 13, 2005]



Sec. 94.212  Labeling.

    (a) General requirements. (1) Each new engine covered by 
acertificate of conformity under Sec. 94.208 shall be labeledby the 
manufacturer in the manner described in this paragraph (b) ofthis 
section at the time of manufacture.
    (2) Each new marine engine modified from a base engine by post-
manufacture marinizers in accordance with the provisions ofSec. 94.209 
(b) and covered by a certificate of conformityunder Sec. 94.208 shall 
be labeled by the PMM in the mannerdescribed in paragraph (b) of this 
section.
    (b) Engine labels. Engine labels meeting the specificationsof this 
section shall be applied to every engine by the manufacturerat the point 
of original manufacture. Engine labels shall be permanentand legible and 
shall be affixed to the engine in a position in whichit will be readily 
visible after installation of the engine in thevessel. The label shall 
be attached to an engine part necessary fornormal operation and not 
normally requiring replacement during theuseful life of the engine. The 
label shall be affixed by themanufacturer in such manner that it cannot 
be removed withoutdestroying or defacing the label. The label shall not 
be affixed toany equipment which is easily detached from such engine. 
The label maybe not be made up of more than one piece without the 
advance approvalof the Administrator. The label shall contain the 
followinginformation lettered in the English language in block letters 
andnumerals, which shall be of a color that contrasts with the 
backgroundof the label:
    (1) The label heading: Marine Engine Emission Control Information.
    (2) Full corporate name and trademark of the manufacturer.
    (3) The model year.
    (4) The per-cylinder displacement of the engine.
    (5) Engine family and configuration identification.
    (6) A prominent unconditional statement of compliance with 
U.S.Environmental Protection Agency regulations that apply to 
marinecompression-ignition engines.
    (7) The useful life of the engine, unless the applicable usefullife 
is based on the provisions of Sec. 94.9(a)(1).
    (8) The standards and/or FELs to which the engine was certified.
    (9) Engine tune-up specifications and adjustments, as recommendedby 
the manufacturer in accordance with the applicable emissionstandards, 
including but not limited to idle speeds(s), injectiontiming, valve lash 
(as applicable), as well as other parameters deemednecessary by the 
manufacturer.
    (10) The application for which the engine family is certified.(For 
example: constant-speed auxiliary, variable-speed propulsionengines used 
with fixed-pitch propellers, recreational, etc.)
    (c) The provisions of this section shall not prevent amanufacturer 
from also providing on the label any other informationthat such 
manufacturer deems necessary for, or useful to, the properoperation and 
satisfactory maintenance of the vessel or engine.
    (d) Engines certified under the voluntary standards described 
inSec. 94.8(f) to be designated as Blue Sky Series enginesmust contain 
the statement on the label: ``Blue SkySeries''.

[[Page 642]]

    (e) If an engine can be modified to operate on residual fuel,but has 
not been certified to meet the standards on such a fuel, itmust contain 
the statement on the label: ``THIS ENGINE ISCERTIFIED FOR OPERATION ONLY 
WITH DISTILLATE DIESEL FUEL. MODIFYINGTHE ENGINE TO OPERATE ON RESIDUAL 
FUEL MAY BE A VIOLATION OF FEDERALLAW SUBJECT TO CIVIL PENALTIES.'' The 
Administrator may approvealternate language.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002; 70 
FR 40459, July 13, 2005]



Sec. 94.213  Submission of engine identification numbers.

    (a) Upon request of the Administrator, the manufacturer of anyengine 
covered by a certificate of conformity shall, within 30 days ofreceipt 
of such request, identify by engine identification number, theengines 
covered by the certificate of conformity.
    (b) The manufacturer of any engines covered by a certificate 
ofconformity shall provide to the Administrator, within 60 days of 
theissuance of a certificate of conformity, an explanation of 
theelements in any engine identification coding system in 
sufficientdetail to enable the Administrator to identify those engines 
which arecovered by a certificate of conformity.



Sec. 94.214  Production engines.

    Any manufacturer obtaining certification under this part shallsupply 
to the Administrator, upon his/her request, a reasonable numberof 
production engines, as specified by the Administrator. The enginesshall 
be representative of the engines, emission control systems, andfuel 
systems offered and typical of production engines available forsale or 
use under the certificate. These engines shall be supplied fortesting at 
such time and place and for such reasonable periods as theAdministrator 
may require. This requirement does not apply forCategory 3 engines. 
Manufacturers of Category 3 engines, however, mustallow EPA access to 
test engines and development engines to the extentnecessary to determine 
that the engine family is in full compliancewith the applicable 
requirements of this part.

[68 FR 9786, Feb. 28, 2003]



Sec. 94.215  Maintenance of records; submittal of information; right of entry.

    (a) Any manufacturer subject to any of the standards or 
proceduresprescribed in this subpart shall establish, maintain and 
retain thefollowing adequately organized and indexed records:
    (1) General records. The records required to be maintained by 
thisparagraph (a) shall consist of:
    (i) Identification and description of all certification enginesfor 
which testing is required under this subpart.
    (ii) A description of all emission control systems which 
areinstalled on or incorporated in each certification engine.
    (iii) A description of all procedures used to test each 
suchcertification engine.
    (iv) A copy of all applications for certification, filed with 
theAdministrator.
    (2) Individual records. (i) A brief history of each engine usedfor 
certification under this subpart including:
    (A) In the case where a current production engine is modified foruse 
as a certification engine, a description of the process by whichthe 
engine was selected and of the modifications made. In the casewhere the 
certification engine is not derived from a currentproduction engine, a 
general description of the buildup of the engine(e.g., whether 
experimental heads were cast and machinedaccording to supplied 
drawings). In the cases in the previous twosentences, a description of 
the origin and selection process for fuelsystem components, ignition 
system components (as applicable), intakeair pressurization and cooling 
system components, cylinders, pistonsand piston rings, exhaust smoke 
control system components, and exhaustaftertreatment devices as 
applicable, shall be included. The requireddescriptions shall specify 
the steps taken to assure that thecertification engine, with respect to 
its engine, drivetrain, fuelsystem, emission control system components, 
exhaust aftertreatmentdevices, or any

[[Page 643]]

other devices or components as applicable, thatcan reasonably be 
expected to influence exhaust emissions will berepresentative of 
production engines and that either: all componentsand/or engine, 
construction processes, component inspection andselection techniques, 
and assembly techniques employed in constructingsuch engines are 
reasonably likely to be implemented for productionengines; or that they 
are as close as practicable to plannedconstruction and assembly process.
    (B) A complete record of all emission tests performed (excepttests 
performed by EPA directly), including test results, the date andpurpose 
of each test, and the number of hours accumulated on theengine.
    (C) A record and description of all maintenance and otherservicing 
performed, giving the date of the maintenance or service andthe reason 
for it.
    (D) A record and description of each test performed to 
diagnoseengine or emission control system performance, giving the date 
andtime of the test and the reason for it.
    (E) A brief description of any significant events affecting 
theengine during the period covered by the history and not described 
byan entry under one of the previous headings, including 
suchextraordinary events as accidents involving the engine or 
dynamometerrunaway.
    (ii) Each such history shall be started on the date that the firstof 
any of the selection or buildup activities in paragraph (a)(2)(i)(A) of 
this section occurred with respect to the certification engineand shall 
be kept in a designated location.
    (3) All records, other than routine emission test records,required 
to be maintained under this subpart shall be retained by themanufacturer 
for a period of 8 years after issuance of allcertificates of conformity 
to which they relate. Routine emission testrecords shall be retained by 
the manufacturer for a period of one (1)year after issuance of all 
certificates of conformity to which theyrelate. Records may be retained 
as hard copy or reduced to computerdisks, etc., depending on the record 
retention procedures of themanufacturer: Provided, that in every case 
all the informationcontained in the hard copy shall be retained.
    (4) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (5) Pursuant to a request made by the Administrator, themanufacturer 
shall submit to him/her the information that is requiredto be retained.
    (6) EPA may void a certificate of conformity ab initio foran engine 
family for which the manufacturer fails to retain therecords required in 
this section or to provide such information to theAdministrator upon 
request.
    (b) The manufacturer of engines subject to any of the 
standardsprescribed in this part shall submit to the Administrator, at 
the timeof issuance by the manufacturer, copies of all instructions 
orexplanations regarding the use, repair, adjustment, maintenance, 
ortesting of such engine, relevant to the control of crankcase, 
orexhaust emissions issued by the manufacturer, for use by 
othermanufacturers, assembly plants, distributors, dealers, owners 
andoperators. Any material not translated into the English language 
neednot be submitted unless specifically requested by the Administrator.
    (c) Any manufacturer participating in averaging, banking andtrading 
program of subpart D of this part must comply with themaintenance of 
records requirements of Sec. 94.308.
    (d)(1) Any manufacturer who has applied for certification of a 
newengine subject to certification testing under this subpart shall 
admitor cause to be admitted any EPA Enforcement Officer during 
operatinghours on presentation of credentials to any of the following:
    (i) Any facility where any such tests or any procedures oractivities 
connected with such test are or were performed;
    (ii) Any facility where any engine which is being tested (or 
wastested, or is to be tested) is present;
    (iii) Any facility where any construction process or assemblyprocess 
used in the modification or buildup of such an engine into 
acertification engine is taking place or has taken place; or
    (iv) Any facility where any record or other document relating toany 
of the

[[Page 644]]

activities listed in this paragraph (d)(1).
    (2) Upon admission to any facility referred to in paragraph (d)(1)of 
this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any part or aspect of such 
procedures,activities and testing facilities including, but not limited 
to,monitoring engine preconditioning, emissions tests, 
serviceaccumulation, maintenance, and engine storage procedures, and 
toverify correlation or calibration of test equipment;
    (ii) To inspect and make copies of any such records, designs, 
orother documents, including those records specified in Subpart D ofthis 
part; and
    (iii) To inspect and/or photograph any part or aspect of any 
suchcertification engine and any components to be used in the 
constructionthereof.
    (3) In order to allow the Administrator to determine whether ornot 
production engines, conform to the conditions upon which acertificate of 
conformity has been issued, or conform in all materialrespects to the 
design specifications applicable to those engines, asdescribed in the 
application for certification for which a certificateof conformity has 
been issued, any manufacturer shall admit any EPAEnforcement Officer on 
presentation of credentials to:
    (i) Any facility where any document, design or procedure relatingto 
the translation of the design and construction of engines andemission 
related components described in the application forcertification or used 
for certification testing into productionengines is located or carried 
on;
    (ii) Any facility where any engines to be introduced into 
commerceare manufactured; and
    (iii) Any facility where records specified this section arelocated.
    (4) On admission to any such facility referred to in paragraph 
(d)(3) of this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any aspects of such manufacture andother 
procedures;
    (ii) To inspect and make copies of any such records, documents 
ordesigns;
    (iii) To inspect and photograph any part or aspect of any 
suchengine(s) and any component used in the assembly thereof that 
arereasonably related to the purpose of his/her entry; and
    (iv) To inspect and make copies of any records and 
documentsspecified in this section.
    (5) Any EPA Enforcement Officer shall be furnished by those incharge 
of a facility being inspected with such reasonable assistanceas he/she 
may request to help him/her discharge any function listed inthis part. 
Each applicant for or recipient of certification isrequired to cause 
those in charge of a facility operated for itsbenefit to furnish such 
reasonable assistance without charge to EPAwhether or not the applicant 
controls the facility.
    (6) The duty to admit or cause to be admitted any EPA 
EnforcementOfficer applies to any facility involved in the manufacturing 
orassembling of engines, whether or not the manufacturer owns orcontrols 
the facility in question and applies both to domestic and toforeign 
manufacturers and facilities. EPA will not attempt to make 
anyinspections which it has been informed that local law 
forbids.However, if local law makes it impossible to do what is 
necessary toinsure the accuracy of data generated at a facility, no 
informedjudgment that an engine is certifiable or is covered by a 
certificatecan properly be based on those data. It is the responsibility 
of themanufacturer to locate its testing and manufacturing facilities 
injurisdictions where this situation will not arise.
    (7) For purposes of this section:
    (i) ``Presentation of credentials'' shall mean displayof the 
document designating a person as an EPA Enforcement Officer.
    (ii) Where component or engine storage areas or facilities 
areconcerned, ``operating hours'' shall mean all times duringwhich 
personnel other than custodial personnel are at work in thevicinity of 
the area or facility and have access to it.
    (iii) Where facilities or areas other than those covered byparagraph 
(d)(7)(ii) of this section are concerned, ``operatinghours'' shall mean 
all times

[[Page 645]]

during which an assembly lineis in operation or all times during which 
testing, maintenance,service accumulation, production or compilation of 
records, or anyother procedure or activity related to certification 
testing, totranslation of designs from the test stage to the production 
stage, orto engine manufacture, or assembly is being carried out in a 
facility.
    (iv) ``Reasonable assistance'' includes, but is notlimited to, 
clerical, copying, interpretation and translationservices, the making 
available on request of personnel of the facilitybeing inspected during 
their working hours to inform the EPAEnforcement Officer of how the 
facility operates and to answer hisquestions, and the performance on 
request of emissions tests on anyengine which is being, has been, or 
will be used for certificationtesting. Such tests shall be 
nondestructive, but may requireappropriate service accumulation. A 
manufacturer may be compelled tocause the personal appearance of any 
employee at such a facilitybefore an EPA Enforcement Officer by written 
request for hisappearance, signed by the Assistant Administrator for Air 
andRadiation or the Assistant Administrator for Enforcement 
andCompliance Assurance, served on the manufacturer. Any such 
employeewho has been instructed by the manufacturer to appear will be 
entitledto be accompanied, represented and advised by counsel.
    (v) Any entry without 24 hour prior written or oral notificationto 
the affected manufacturer shall be authorized in writing by theAssistant 
Administrator for Air and Radiation or the AssistantAdministrator for 
Enforcement and Compliance Assurance.
    (8) EPA may void a certificate of conformity ab initio forengines 
introduced into commerce if the manufacturer (or contractorfor the 
manufacturer, if applicable) fails to comply with anyprovision of this 
section.



Sec. 94.216  Hearing procedures.

    (a)(1) After granting a request for a hearing underSec. 94.210 or 
Sec. 94.208, the Administratorshall designate a Presiding Officer for 
the hearing.
    (2) The hearing shall be held as soon as practicable at a time 
andplace fixed by the Administrator or by the Presiding Officer.
    (3) In the case of any hearing requested pursuant toSec. 94.208, 
the Administrator may in his/her discretiondirect that all argument and 
presentation of evidence be concludedwithin such fixed period not less 
than 30 days as he/she may establishfrom the date that the first written 
offer of a hearing is made to themanufacturer. To expedite proceedings, 
the Administrator may directthat the decision of the Presiding Officer 
(who may, but need not bethe Administrator) shall be the final EPA 
decision.
    (b)(1) Upon his/her appointment pursuant to paragraph (a) of 
thissection, the Presiding Officer will establish a hearing file. The 
fileshall consist of the notice issued by the Administrator underSec. 
94.210 or Sec. 94.208 together with anyaccompanying material, the 
request for a hearing and the supportingdata submitted therewith, and 
all documents relating to the requestfor certification and all documents 
submitted therewith, andcorrespondence and other data material to the 
hearing.
    (2) The hearing file will be available for inspection by 
theapplicant at the office of the Presiding Officer.
    (c) An applicant may appear in person, or may be represented 
bycounsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party, or 
inhis/her discretion, may arrange for a prehearing conference at a 
timeand place specified by him/her to consider the following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction 
ofdocuments;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of all or any of theissues 
in dispute;
    (v) Such other matters as may aid in the disposition of thehearing, 
including such additional tests as may be agreed upon by theparties.
    (2) The results of the conference shall be reduced to writing bythe 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in 
aninformal

[[Page 646]]

but orderly and expeditious manner. The parties mayoffer oral or written 
evidence, subject to the exclusion by thePresiding Officer of 
irrelevant, immaterial and repetitious evidence.
    (2) Witnesses will not be required to testify under oath. 
However,the Presiding Officer shall call to the attention of witnesses 
thattheir statements may be subject to the provisions of 18 U.S.C. 
1001which imposes penalties for knowingly making false statements 
orrepresentations, or using false documents in any matter within 
thejurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the 
PresidingOfficer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts 
ofproceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar 
dataoffered in evidence at the hearings shall, upon a showing 
satisfactoryto the Presiding Officer of their authenticity, relevancy, 
andmateriality, be received in evidence and shall constitute a part 
ofthe record.
    (6) Oral argument may be permitted in the discretion of thePresiding 
Officer and shall be reported as part of the record unlessotherwise 
ordered by him/her.
    (f)(1) The Presiding Officer shall make an initial decision 
whichshall include written findings and conclusions and the reasons 
orbasis therefor on all the material issues of fact, law, or 
discretionpresented on the record. The findings, conclusions, and 
writtendecision shall be provided to the parties and made a part of 
therecord. The initial decision shall become the decision of 
theAdministrator without further proceedings unless there is an appeal 
tothe Administrator or motion for review by the Administrator within 
30days of the date the initial decision was filed.
    (2) On appeal from or review of the initial decision, 
theAdministrator shall have all the powers which he/she would have 
inmaking the initial decision including the discretion to require 
orallow briefs, oral argument, the taking of additional evidence or 
theremanding to the Presiding Officer for additional proceedings. 
Thedecision by the Administrator shall include written findings 
andconclusions and the reasons or basis therefor on all the 
materialissues of fact, law, or discretion presented on the appeal 
orconsidered in the review.



Sec. 94.217  Emission data engine selection.

    (a) The manufacturer must select for testing, from each 
enginefamily, the engine configuration which is expected to be worst-
casefor exhaust emission compliance on in-use engines, considering 
allexhaust emission constituents and the range of installation 
optionsavailable to vessel builders. The engines selected for testing 
arecollectively described as the test fleet.
    (b) Each engine in the test fleet must be constructed to 
berepresentative of production engines.
    (c) After review of the manufacturer's test fleet, theAdministrator 
may select from the available fleet one additional testengine from each 
engine family.
    (d) Each engine selected shall be tested according to theprovisions 
of Subpart B of this part.
    (e) In lieu of testing an emission data engine selected 
underparagraph (a) of this section and submitting the resulting data, 
amanufacturer may, with Administrator approval, use emission data on 
asimilar engine for which certification has previously been obtained 
orfor which all applicable data required under this subpart 
havepreviously been submitted. These data must be submitted in 
theapplication for certification.
    (f) A single cylinder test engine may be used for certification 
ofTier 1 Category 3 engine families. If you use test data from a 
singlecylinder test engine for certification, explain in your 
applicationhow you have determined that such data show that the multiple 
cylinderproduction engines will comply with the applicable emission 
standards.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb.28, 2003]

[[Page 647]]



Sec. 94.218  Deterioration factor determination.

    Manufacturers shall determine exhaust emission deteriorationfactors 
using good engineering judgement according to the provisionsof this 
section. Every deterioration factor must be, in theAdministrator's 
judgment, consistent with emissions increases observedin-use based on 
emission testing of similar engines. Deteriorationfactors that predict 
emission increases over the useful life of anengine that are 
significantly less than the emission increases overthe useful life 
observed from in-use testing of similar engines shallnot be used.
    (a) A separate exhaust emission deterioration factor shall 
beestablished for each engine family and for each emission 
constituentapplicable to that family.
    (b) Calculation procedures--(1) For engines notutilizing 
aftertreatment technology (e.g., catalyst). For eachapplicable emission 
constituent, an additive deterioration factorshall be used; that is, a 
deterioration factor that when added to thelow mileage emission rate 
equals the emission rate at the end ofuseful life. However, if the 
deterioration factor supplied by themanufacturer is less than zero, it 
shall be zero for the purposes ofthis section.
    (2) For engines utilizing aftertreatment technology (e.g.,catalyst). 
For each applicable emission constituent, amultiplicative deterioration 
factor shall be used; that isdeterioration factors that when multiplied 
by the low mileage emissionrate equal the emission rate at the end of 
useful life. However, ifthe deterioration factor supplied by the 
manufacturer is less thanone, it shall be one for the purposes of this 
section.
    (c) Rounding. (1) In the case of a multiplicative exhaustemission 
deterioration factor, round the factor to three places to theright of 
the decimal point.
    (2) In the case of an additive exhaust emission deteriorationfactor, 
round the factor shall to at least two places to the right ofthe decimal 
point.
    (d)(1) Except as allowed by paragraph (d)(2) of this section, 
themanufacturer shall determine the deterioration factors for Category 
1and Category 2 engines based on service accumulation and 
relatedtesting, according to the manufacturer's procedures, and 
theprovisions of Sec. Sec. 94.219 and 94.220. Themanufacturer shall 
determine the form and extent of this serviceaccumulation, consistent 
with good engineering practice, and shalldescribe this process in the 
application for certification.
    (2) Alternatives to service accumulation and testing for 
thedetermination of a deterioration factor. A written explanation ofthe 
appropriateness of using an alternative must be included in 
theapplication for certification.
    (i) Carryover and carryacross of durability emission data.In lieu of 
testing an emission data or durability data engine selectedunder Sec. 
94.217 or Sec. 94.219, and submittingthe resulting data, a manufacturer 
may, with Administrator approval,use exhaust emission deterioration data 
on a similar engine for whichcertification to the same standard has 
previously been obtained or forwhich all applicable data required under 
this subpart have previouslybeen submitted. These data must be submitted 
in the application forcertification.
    (ii) Use of non-marine deterioration data. In the case wherea 
manufacturer produces a certified motor vehicle engine, 
locomotiveengine, or other nonroad engine that is similar to the marine 
engineto be certified, deterioration data from the non-marine engine may 
beapplied to the marine engine. This application of deterioration 
datafrom such an engine to a marine engine is subject to 
Administratorapproval, and the determination of whether the engines are 
similarshall be based on good engineering judgment.
    (iii) Engineering analysis for established technologies. Inthe case 
where an engine family uses technology which is wellestablished, an 
analysis based on good engineering practices may beused in lieu of 
testing to determine a deterioration factor for thatengine family. 
Engines using exhaust gas recirculation oraftertreatment are excluded 
from this provision. The manufacturershall provide a written statement 
to the Administrator that all data,analyses, test procedures, 
evaluations, and other documents, on whichthe deterioration factor is 
based, are available to the Administratorupon request.

[[Page 648]]

    (iv) Assigned deterioration factors. Small-volumemanufacturers may 
use deterioration factors established by EPA.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002; 68 
FR 9786, Feb. 28, 2003]



Sec. 94.219  Durability data engine selection.

    (a) For Category 1 and Category 2 engines, the manufacturer 
shallselect for durability testing, from each engine family, the 
engineconfiguration which is expected to generate the highest level 
ofexhaust emission deterioration on engines in use, considering 
allexhaust emission constituents and the range of installation 
optionsavailable to vessel builders. The manufacturer shall use 
goodengineering judgment in making this selection.
    (b) Carryover data satisfying the provisions ofSec. 94.220 may also 
be used in lieu of testing theconfiguration selected in paragraph (a) of 
this section.
    (c) Durability data engines shall be built from subsystems 
andcomponents that are representative of actual production engines.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb.28, 2003]



Sec. 94.220  Service accumulation.

    (a) Each test emission data engine in the test fleet may beoperated 
with all emission control systems operating properly for aperiod, up to 
125 hours of operation, that is sufficient to stabilizeemissions.
    (b) Durability data engines shall accumulate service in a 
mannerwhich will represent the emission levels from in-use engines 
overtheir full useful life, consistent with good engineering judgement.
    (1) Components may be removed from the engine and aged separately.
    (2) End of useful life emission levels and deterioration factorsmay 
be projected from durability data engines which have completedless than 
full useful life service accumulation, provided that theamount of 
service accumulation completed and projection procedures aredetermined 
using good engineering judgement.
    (c) No maintenance, other than recommended lubrication and 
filterchanges or maintenance otherwise allowed by this part, may 
beperformed during service accumulation without the 
Administrator'sapproval.
    (d) The manufacturer must maintain, and provide to theAdministrator 
if requested, records stating the rationale forselecting the service 
accumulation period and records describing themethod used to accumulate 
service hours on the test engine(s).



Sec. 94.221  Application of good engineering judgment.

    (a) The manufacturer shall exercise good engineering judgment 
inmaking all decisions called for under this part, including but 
notlimited to selections, categorizations, determinations, 
andapplications of the requirements of the part.
    (b) Upon written request by the Administrator, the manufacturershall 
provide within 15 working days (or such longer period as may beallowed 
by the Administrator) a written description of the engineeringjudgment 
in question.
    (c) The Administrator may reject any such decision by amanufacturer 
if it is not based on good engineering judgment or isotherwise 
inconsistent with the requirements of this part.
    (d) If the Administrator rejects a decision by a manufacturer 
withrespect to the exercise of good engineering judgment, the 
followingprovisions shall apply:
    (1) If the Administrator determines that incorrect information 
wasdeliberately used in the decision process, that important 
informationwas deliberately overlooked, that the decision was not made 
in goodfaith, or that the decision was not made with a rational basis, 
theAdministrator may suspend or void ab initio a certificate 
ofconformity.
    (2) If the Administrator determines that the manufacturer'sdecision 
is not covered by the provisions of paragraph (d) (1) of thissection, 
but that a different decision would reflect a better exerciseof good 
engineering judgment, then the Administrator will notify themanufacturer 
of this concern and the basis of the concern.
    (i) The manufacturer shall have at least 30 days to respond tothis 
notice.

[[Page 649]]

The Administrator may extend this response periodupon request from the 
manufacturer if it is necessary to generateadditional data for the 
manufacturer's response.
    (ii) The Administrator shall make the final ruling afterconsidering 
the information provided by the manufacturer during theresponse period. 
If the Administrator determines that themanufacturer's decision was not 
made using good engineering judgment,he/she may reject that decision and 
apply the new ruling to futurecorresponding decisions as soon as 
practicable.
    (e) The Administrator shall notify the manufacturer in 
writingregarding any decision reached under paragraph (d)(1) or (2) of 
thissection. The Administrator shall include in this notification 
thebasis for reaching the determination.
    (f) Within 30 working days following receipt of notification ofthe 
Administrator's determinations made under paragraph (d) of thissection, 
the manufacturer may request a hearing on thosedeterminations. The 
request shall be in writing, signed by anauthorized representative of 
the manufacturer, and shall include astatement specifying the 
manufacturer's objections to theAdministrator's determinations, and data 
or other analysis in supportof such objections. If, after review of the 
request and supportingdata or analysis, the Administrator finds that the 
request raises asubstantial factual issue, he/she shall provide the 
manufacturer ahearing in accordance with Sec. 94.216 with respect to 
suchissue.



Sec. 94.222  Certification of engines on imported vessels.

    For marine engines subject to the requirements of this part thatare 
installed on imported vessels, the Administrator may specifyalternate 
certification provisions as necessary.



    Subpart D_Certification Averaging, Banking, and TradingProvisions



Sec. 94.301  Applicability.

    Marine engine families subject to the standards of subpart A ofthis 
part are eligible to participate in the certification averaging,banking, 
and trading program described in this subpart. The provisionsof this 
subpart apply to manufacturers of new engines that are subjectto the 
emission standards of Sec. 94.8. To the extentspecified in 40 CFR part 
60, subpart IIII, stationary enginescertified under this part and 
subject to the standards of 40 CFR part60, subpart IIII, may participate 
in the averaging, banking, andtrading program described in this subpart.

[71 FR 39184, July 11, 2006]



Sec. 94.302  Definitions.

    The definitions of Subpart A of this part apply to this subpart.The 
following definitions also apply:
    Applicable standard means a standard that would haveotherwise been 
applicable had the engine not been certified under thissubpart to an FEL 
different than that standard.
    Broker means any entity that facilitates a trade between abuyer and 
seller.
    Buyer means the entity that receives credits as a result oftrade.
    Reserved credits means credits that have been generated buthave not 
yet been reviewed by EPA or used to demonstrate complianceunder the 
averaging provisions of this subpart.
    Seller means the entity that provides credits during atrade.



Sec. 94.303  General provisions.

    (a) Participation in the averaging, banking, and trading programis 
voluntary. A manufacturer may choose to involve some or all of itsengine 
families in any or all aspects of the program.
    (b) An engine family is eligible to participate in thecertification 
averaging, banking, and trading program forTHC+NOX and PM 
emissions only if it is subject toregulation under this part with 
certain exceptions specified inparagraph (c) of this section. No 
averaging, banking, and tradingprogram is available for meeting the CO 
standards of this part.
    (c) Engines may not participate in the certification 
averaging,banking, and trading program if they are exported. Only 
enginescertified under this part are eligible for generation or

[[Page 650]]

use ofcredits in this certification averaging, banking, and trading 
program.Engines certified to the Blue Sky provisions of Sec. 94.8(f)are 
not eligible for inclusion in this certification averaging,banking, and 
trading program.
    (d) Averaging involves the generation of credits by a 
manufacturerfor use by that same manufacturer in the same calendar year. 
Amanufacturer may use averaging during certification to offset 
anemission exceedance of an engine family caused by an FEL above 
theapplicable emission standard, subject to the provisions of 
thissubpart.
    (e) Banking involves the generation of credits by a manufacturerin a 
given calendar year for use in a subsequent model year. Amanufacturer 
may bank actual credits only after the end of thecalendar year and after 
EPA has reviewed the manufacturer's end-of-year reports. During the 
calendar year and before submittal of theend-of-year report, credits 
originally designated in the certificationprocess for banking will be 
considered reserved and may beredesignated for trading or averaging in 
the end-of-year report.Credits declared for banking from the previous 
calendar year that havenot been reviewed by EPA may be used in averaging 
or tradingtransactions. However, such credits may be revoked at a later 
timefollowing EPA review of the end-of-year report or any subsequent 
auditactions.
    (f) Trading involves the sale of banked credits for use 
incertification of new engines under this part. Only banked credits 
maybe traded; reserved credits may not be traded.



Sec. 94.304  Compliance requirements.

    (a) Manufacturers wishing to participate in certificationaveraging, 
banking and trading programs shall select a FEL for eachengine family 
they wish to include. The level of the FEL shall beselected by the 
manufacturer, subject to the upper limits described inparagraph (m) of 
this section. An engine family certified to an FEL issubject to all 
provisions specified in this part, except that theapplicable FEL 
replaces the applicable THC+NOX and PMemission standard for 
the family participating in the averaging,banking, and trading program.
    (b) A manufacturer may certify one or more engine families at 
FELsabove or below the applicable emission standard, provided 
thesummation of the manufacturer's projected balance of all 
credittransactions in a given calendar year is greater than or equal 
tozero, as calculated for each family under Sec. 94.305 andreported 
under Sec. 94.309.
    (c) Manufacturers certifying engine families with FELs exceedingthe 
applicable emission standard shall obtain emission credits inamounts 
sufficient to address the shortfall. Credits may be obtainedfrom 
averaging, banking, or trading, subject to the restrictionsdescribed in 
this subpart.
    (d) Manufacturers certifying engine families with FELs below 
theapplicable emission standard may generate emission credits to 
average,bank, or trade, or a combination thereof.
    (e) An engine family may not generate credits for one pollutantwhile 
also using credits for another pollutant in the same model year.
    (f) Credits may only be used for certification; they may not beused 
to remedy a violation of the FEL determined by production line orin-use 
testing. Credits may be used to allow subsequent production ofengines 
for an engine family failing production line testing if themanufacturer 
elects to recertify to a higher FEL.
    (g) [Reserved].
    (h) If an FEL is changed after initial certification in any 
givenmodel year, the manufacturer must conduct production line testing 
toverify that the emission levels are achieved, with one exception: 
whenan FEL is changed immediately after (and because of) a production 
linetesting failure, additional verification testing is not required.
    (i) Manufacturers participating in the averaging, banking andtrading 
program must demonstrate compliance with the applicableemission 
standards at the end of the model year. Manufacturers thathave certified 
engine families to FELs above the applicable emissionstandards and do 
not have sufficient emission credits to offset thedifference between the 
emission standard and the FEL for such enginefamilies will be in 
violation of the conditions of the certificate ofconformity for such 
engine families. The certificates of

[[Page 651]]

conformity may be voided ab initio for those enginefamilies.
    (j) In the event of a negative credit balance resulting from acredit 
trade, both the buyer(s) and the seller(s) are liable, exceptin cases 
involving fraud. Certificates of all engine familiesparticipating in a 
negative trade may be voided ab initio.
    (1) Where a buyer of credits is not responsible for causing 
thenegative credit balance, the buyer is only liable to supply 
additionalcredits equivalent to any amount of invalid credits that the 
buyerused for its engine family(ies).
    (2) Credit holders responsible for the credit shortfall may 
besubject to the requirements of Sec. 94.309(g)(3).
    (k) The following provisions limit credit exchanges betweendifferent 
types of engines:
    (1) Credits generated by Category 1 engine families may be usedfor 
compliance by Category 1 or Category 2 engine families. Creditsgenerated 
from Category 1 engine families for use by Category 2 enginefamilies 
must be discounted by 25 percent.
    (2) Credits generated by Category 2 engine families may be usedfor 
compliance only by Category 2 engine families.
    (3) Credits may not be exchanged between recreational andcommercial 
engines.
    (l) Credit life shall be unlimited.
    (m) Upper limits. The FELs for THC+NOX and PMfor new 
engines certified for participation in this averaging, bankingand 
trading program may not exceed the following values:
    (1) For Category 1 engines, the FEL may not exceed the 
levelscontained in Table D-1, which follows:

                       Table D-1--Category 1 UpperLimits for Tier 2 Family Emission Limits
----------------------------------------------------------------------------------------------------------------
                                                                            Model year    THC+NOX     PM FEL  g/
                        Subcategoryliters/cylinder                             \1\       FELg/kW-hr     kW-hr
----------------------------------------------------------------------------------------------------------------
Power = 37 kW disp. < 0.9.....................................         2005         11.5          1.2
0.9 <= disp. < 1.2.......................................................         2004         11.5          1.2
1.2 <= disp. < 2.5.......................................................         2004         10.5         0.54
2.5 <= disp. < 5.0.......................................................         2007         10.5         0.54
----------------------------------------------------------------------------------------------------------------
\1\ The model years listed indicate the model years for whichthe specified standards start.

    (2) For Category 2 engines, the FEL may not exceed the 
applicablestandard by more than 25 percent.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002]



Sec. 94.305  Credit generation and use calculation.

    (a) For each participating engine family, 
calculateTHC+NOX and PM emission credits (positive or 
negative)according to the equation in paragraph (b) of this section and 
roundemissions to the nearest one-hundredth of a megagram (Mg). 
Useconsistent units throughout the calculation.
    (b) Credits (Mg) for each engine family are calculated as:Emission 
credits = (Std--FEL)x(UL)x(Production)x(AvgPR)x(LF)x(10-6)
    Where:
    (i) Std = the applicable cycle-weighted marine 
engineTHC+NOX or PM emission standard in grams per kilowatt-
hour.
    (ii) FEL = the family emission limit for the engine family ingrams 
per kilowatt-hour. (The FEL may not exceed the limit establishedin Sec. 
94.304(m) for each pollutant.)
    (iii) UL = the useful life in hours of operation.
    (iv) Production = the number of engines participating in 
theaveraging, banking, and trading program within the given engine 
familyduring the calendar year (or the number of engines in the subset 
ofthe engine family for which credits are being calculated). 
Quarterlyproduction projections are used for initial certification. 
Actualapplicable production/sales volumes are used for end-of-
yearcompliance determination.
    (v) AvgPR = average power rating of all of the configurationswithin 
an engine family, calculated on a sales-weighted basis, inkilowatts.

[[Page 652]]

    (vi) LF = the load factor, dependent on whether the engine 
isintended for propulsion or auxiliary applications, as follows:
    (A) 0.69 for propulsion engines,
    (B) 0.51 for auxiliary engines.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb.28, 2003]



Sec. 94.306  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Declare its intent to include specific engine families in 
theaveraging, banking, and/or trading programs. Separate declarations 
arerequired for each pollutant (THC+NOX and PM).
    (2) Declare FELs for each engine family participating 
incertification averaging, banking, and/or trading.
    (i) The FELs must be to the same number of significant digits asthe 
emission standard.
    (ii) In no case may the FEL exceed the upper limit prescribed 
inSec. 94.304(m).
    (3) Conduct and submit detailed calculations of projected 
emissioncredits (positive or negative) based on quarterly 
productionprojections for each participating family and for each 
pollutant,using the applicable equation in Sec. 94.305 and 
theapplicable values of the terms in the equation for the 
specificfamily.
    (i) If the engine family is projected to have negative 
emissioncredits, state specifically the source (manufacturer/engine 
family) ofthe credits necessary to offset the credit deficit according 
toquarterly projected production.
    (ii) If the engine family is projected to generate credits, 
statespecifically where the quarterly projected credits will be 
applied(manufacturer/engine family or reserved).
    (4) Submit a statement that the engines for which certification 
isrequested will not, to the best of the manufacturer's belief, causethe 
manufacturer to have a negative credit balance when all creditsare 
calculated for all the manufacturer's engine familiesparticipating in 
the averaging, banking, and trading program.
    (b) Based on this information, each manufacturer's 
certificationapplication must demonstrate:
    (1) That at the end of model year production, each engine familyhas 
a net emissions credit balance equal to or greater than zero forany 
pollutant and program for which participation in certificationunder 
averaging, banking, and/or trading is being sought. The equationin 
section Sec. 94.305 shall be used in this calculation foreach engine 
family.
    (2) That the manufacturer will obtain sufficient credits to beused 
to comply with the emission standard for any engine family withan FEL 
that exceeds the applicable emission standard, or where creditswill be 
applied if the FEL is less than the emission standard. Incases where 
credits are being obtained, for each engine familyinvolved the 
manufacturer must identify specifically the source of thecredits being 
used (manufacturer/engine family). All such reportsshall include all 
credits involved in certification averaging,banking, or trading.
    (3) That in cases where credits are being generated/supplied, theuse 
of such credits is specifically designated (manufacturer/enginefamily or 
reserved). All such reports shall include all creditsinvolved in 
certification averaging, banking, or trading.
    (c) Manufacturers must monitor projected versus actual 
productionthroughout the model year to ensure that compliance with 
emissionstandards is achieved at the end of the model year.
    (d) At the end of the model year, the manufacturer must providethe 
end-of-year reports required under Sec. 94.309.
    (1) Projected credits based on the information supplied in 
thecertification application may be used to obtain a certificate 
ofconformity. However, any such projected credits must be validatedbased 
on review of the end of model year reports and may be revoked ata later 
time based on follow-up audits or any other verificationmeasure deemed 
appropriate by the Administrator.
    (2) Compliance for engine families using averaging, banking, 
ortrading will be determined at the end of the model year. 
Manufacturersthat have certified engine families with credit balances 
forTHC+NOX and/or PM that do not equal or exceed zero shallbe 
in

[[Page 653]]

violation of the conditions of the certificate ofconformity for such 
engine families. The certificate of conformity maybe voided ab initio 
for those engine families.
    (e) Other conditions of certification.
    (1) All certificates issued are conditional upon compliance by 
themanufacturer with the provisions of this subpart both during and 
afterthe calendar year of production.
    (2) Failure to comply with all provisions of this subpart will 
beconsidered to be a failure to satisfy the conditions upon which 
thecertificate was issued, and the certificate may be deemed void 
abinitio.
    (3) The manufacturer bears the burden of establishing to 
thesatisfaction of the Administrator that the conditions upon which 
thecertificate was issued were satisfied or waived.



Sec. 94.307  Labeling.

    For all engines included in the certification averaging, banking,and 
trading program, the FEL to which the engine is certified must 
beincluded on the label required in Sec. 94.212.



Sec. 94.308  Maintenance of records.

    (a) The manufacturer of any engine that is certified under 
theaveraging, banking, and trading program must establish, maintain, 
andretain the following adequately organized and indexed records for 
eachsuch engine produced:
    (1) EPA engine family and configuration;
    (2) Engine identification number;
    (3) Engine calendar year and build date;
    (4) Rated power;
    (5) Purchaser and destination; and
    (6) Assembly plant.
    (b) The manufacturer of any engine family that is certified underthe 
averaging, banking, and trading program must establish, maintain,and 
retain the following adequately organized and indexed records foreach 
such family:
    (1) Model year and EPA engine family;
    (2) Family Emission Limit(s) (FEL);
    (3) Rated power for each configuration;
    (4) Projected applicable production/sales volume for the 
calendaryear;
    (5) Actual applicable production/sales volume for the calendaryear; 
and
    (6) Useful life.
    (c) Any manufacturer producing an engine family participating 
intrading of credits must maintain the following records on a 
quarterlybasis for each engine family in the trading program:
    (1) The model year and engine family;
    (2) The actual quarterly and cumulative applicableproduction/sales 
volume;
    (3) The values required to calculate credits as given inSec. 
94.305;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer must retain all records required to 
bemaintained under this section for a period of 8 years from the duedate 
for the end-of-calendar year report. Records may be retained ashard copy 
or reduced to microfilm, ADP diskettes, and so forth,depending on the 
manufacturer's record retention procedure; provided,that in every case 
all information contained in the hard copy isretained.
    (e) Nothing in this section limits the Administrator's discretionin 
requiring the manufacturer to retain additional records or 
submitinformation not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, themanufacturer 
must submit to the Administrator the information that themanufacturer is 
required to retain.
    (g) EPA may void ab initio a certificate of conformity foran engine 
family for which the manufacturer fails to retain therecords required in 
this section or to provide such information to theAdministrator upon 
request.



Sec. 94.309  Reports.

    (a) Manufacturers must submit the certification information 
asrequired under Sec. 94.306, and end-of-year reports eachyear as part 
of their participation in certification averaging,banking, and trading 
programs.
    (b) Quarterly reports. All entities involved in credit trades 
mustsubmit quarterly reports. The reports shall include the source 
orrecipient of the

[[Page 654]]

credits, the amount of credits involved plusremaining balances, details 
regarding the pollutant, and model year aswell as the information 
prescribed in Sec. 94.308(c). Copiesof contracts related to credit 
trading must be included or supplied bythe buyer, seller, and broker, as 
applicable.
    (c) End-of-year reports must include the information prescribed 
inSec. 94.308(b). The report shall include a calculation ofcredit 
balances for each family to show that the summation of themanufacturer's 
use of credits results in a credit balance equal to orgreater than zero. 
The report shall be consistent in detail with theinformation submitted 
under Sec. 94.306 and show how creditsurpluses were dispersed and how 
credit shortfalls were met on afamily specific basis. The end-of-year 
report shall incorporate anyinformation reflected in previous quarterly 
reports.
    (d) The applicable production/sales volume for quarterly and end-of-
year reports must be based on the location of either the point offirst 
retail sale by the manufacturer or the point at which the engineis 
placed into service, whichever occurs first. This is called thefinal 
product purchase location.
    (e) Each quarterly and end-of-year report submitted shall includea 
statement certifying to the accuracy and authenticity of thematerial 
reported therein.
    (f) Requirements for submission. (1) Quarterly reports must 
besubmitted within 90 days of the end of the calendar quarter to 
theDesignated Officer.
    (2) End-of-year reports must be submitted within 120 days of theend 
of the calendar year to the Designated Officer.
    (3) Failure by a manufacturer participating in the 
averaging,banking, or trading program to submit any quarterly or end-of-
yearreports in the specified time for all engines is a violation 
ofsections 203(a)(1) and 213 of the Clean Air Act for each engine.
    (4) A manufacturer generating credits for banking only who failsto 
submit end-of-year reports in the applicable specified time period(120 
days after the end of the calendar year) may not use or trade thecredits 
until such reports are received and reviewed by EPA. Use ofprojected 
credits pending EPA review is not permitted in thesecircumstances.
    (g) Reporting errors. (1) Errors discovered by EPA or 
themanufacturer in the end-of-year report, including errors in 
creditcalculation, may be corrected 180-days subsequent to submission of 
theend-of-year report. Errors discovered by EPA after 180-days shall 
becorrectable if, as a result of the correction, the 
manufacturer'scredits are reduced. Errors in the manufacturer's favor 
are notcorrected if discovered after the 180-day correction period 
allowed.
    (2) If EPA or the manufacturer determines that a reporting 
erroroccurred on an end-of-year report previously submitted to EPA 
underthis section, the manufacturer's credits and credit calculations 
willbe recalculated. Erroneous positive credits will be void. 
Erroneousnegative credit balances may be corrected by EPA.
    (3) If EPA review of a manufacturer's end-of-year report indicatesa 
credit shortfall, the manufacturer will be permitted to purchase 
thenecessary credits to bring the credit balance to zero. These 
creditsmust be supplied at the ratio of 1.1 credits for each 1.0 
creditneeded. If sufficient credits are not available to bring the 
creditbalance to zero for the family(ies) involved, EPA may void 
thecertificate(s) for that family(ies) ab initio. In addition, 
allengines within an engine family for which there are 
insufficientcredits will be considered to have violated the conditions 
of thecertificate of conformity and therefore are not covered by 
thatcertificate.
    (4) If within 180 days of receipt of the manufacturer's end-of-year 
report, EPA review determines a reporting error in themanufacturer's 
favor (that is, resulting in an increased creditbalance) or if the 
manufacturer discovers such an error within 180days of EPA receipt of 
the end-of-year report, the credits arerestored for use by the 
manufacturer.



Sec. 94.310  Notice of opportunity for hearing.

    Any voiding of the certificate under this subpart will be madeonly 
after

[[Page 655]]

the manufacturer concerned has been offered anopportunity for a hearing 
conducted in accordance withSec. 94.216 and, if a manufacturer requests 
such a hearing,will be made only after an initial decision by the 
Presiding Officer.



   Subpart E_Emission-related Defect Reporting Requirements,Voluntary 
                         Emission Recall Program



Sec. 94.401  Applicability.

    The requirements of this subpart are applicable to manufacturersof 
engines subject to the provisions of Subpart A of this part. 
Therequirement to report emission-related defects affecting a given 
classor category of engines applies for eight years from the end of 
theyear in which such engines were manufactured.



Sec. 94.402  Definitions.

    The definitions of Subpart A of this part apply to this subpart.



Sec. 94.403  Emission defect information report.

    (a) A manufacturer must file a defect information report wheneverit 
determines, in accordance with procedures it established toidentify 
either safety-related or performance defects (or based onother 
information), that a specific emission-related defect exists in25 or 
more Category 1 marine engines, or 10 or more Category 2 marineengines, 
or 2 or more Category 3 engines or cylinders. No report mustbe filed 
under this paragraph for any emission-related defectcorrected prior to 
the sale of the affected engines to an ultimatepurchaser. (Note: These 
limits apply to the occurrence of the samedefect, and are not 
constrained by engine family or model year.)
    (b) Defect information reports required under paragraph (a) ofthis 
section must be submitted not more than 15 working days after thesame 
emission-related defect is found to effect 25 or more Category 1marine 
engines, or 10 or more Category 2 marine engines. Informationrequired by 
paragraph (c) of this section that is either not availablewithin 15 
working days or is significantly revised must be submittedas it becomes 
available.
    (c) Except as provided in paragraph (b) of this section, eachdefect 
report must contain the following information in substantiallythe format 
outlined:
    (1) The manufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of engines 
potentiallyaffected by the defect including make, model, calendar year 
produced,purchaser and any other information as may be required to 
identify theengines affected.
    (4) For each class or category of engines described in response 
toparagraph (c)(3) of this section, the following shall also beprovided:
    (i) The number of engines known or estimated to have the defectand 
an explanation of the means by which this number was determined.
    (ii) The address of the plant(s) at which the potentiallydefective 
engines were produced.
    (5) An evaluation of the emissions impact of the defect and 
adescription of any operational or performance problems which adefective 
engine might exhibit.
    (6) Available emissions data which relate to the defect.
    (7) An indication of any anticipated follow-up by themanufacturer.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb.28, 2003]



Sec. 94.404  Voluntary emissions recall reporting.

    (a) When any manufacturer initiates a voluntary emissions 
recallcampaign involving an engine, the manufacturer shall submit to EPA 
areport describing the manufacturer's voluntary emissions recall planas 
prescribed by this section within 15 working days of the date 
ownernotification was begun. The report shall contain the following:
    (1) A description of each class or category of engines 
recalledincluding the number of engines to be recalled, the calendar 
year ifapplicable, the make, the model, and such other information as 
may berequired to identify the engines recalled.

[[Page 656]]

    (2) A description of the specific modifications, 
alterations,repairs, corrections, adjustments, or other changes to be 
made tocorrect the engines affected by the emission-related defect.
    (3) A description of the method by which the manufacturer willnotify 
engine owners.
    (4) A description of the proper maintenance or use, if any, 
uponwhich the manufacturer conditions eligibility for repair under 
theremedial plan, an explanation of the manufacturer's reasons 
forimposing any such condition, and a description of the proof to 
berequired of an engine owner to demonstrate compliance with any 
suchcondition.
    (5) A description of the procedure to be followed by engine ownersto 
obtain correction of the nonconformity. This shall includedesignation of 
the date on or after which the owner can have thenonconformity remedied, 
the time reasonably necessary to perform thelabor to remedy the defect, 
and the designation of facilities at whichthe defect can be remedied.
    (6) If some or all the nonconforming engines are to be remedied 
bypersons other than authorized warranty agents of the manufacturer, 
adescription of the class of persons other than authorized 
warrantyagents of the manufacturer who will remedy the defect.
    (7) A copy of any written notification sent to engine owners.
    (8) A description of the system by which the manufacturer willassure 
that an adequate supply of parts will be available to performthe repair 
under the remedial plan including the date by which anadequate supply of 
parts will be available to initiate the repaircampaign, the percentage 
of the total parts requirement of each personwho is to perform the 
repair under the remedial plan to be shipped toinitiate the campaign, 
and the method to be used to assure the supplyremains both adequate and 
responsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to 
thosepersons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuelconsumption, 
operation or performance, and safety of each class orcategory of engines 
to be recalled.
    (11) A sample of any label to be applied to engines whichparticipate 
in the voluntary recall campaign.
    (b) Unless otherwise specified by the Administrator, themanufacturer 
shall report on the progress of the recall campaign bysubmitting 
subsequent reports for six consecutive quarters, or untilproven that 
remedial action has been adequately taken on all affectedengines, 
whichever occurs first, commencing with the quarter after thevoluntary 
emissions recall campaign actually begins. Such reportsshall be 
submitted no later than 25 working days after the close ofeach calendar 
quarter. For each class or group of engine subject tothe voluntary 
emissions recall campaign, the quarterly report shallcontain the:
    (1) Emission recall campaign number, if any, designated by 
themanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of engines involved in the voluntary emissions 
recallcampaign.
    (4) Number of engines known or estimated to be affected by 
theemission-related defect and an explanation of the means by which 
thisnumber was determined.
    (5) Number of engines inspected pursuant to voluntary emissionrecall 
plan.
    (6) Number of inspected engines found to be affected by 
theemissions-related defect.
    (7) Number of engines actually receiving repair under the 
remedialplan.
    (8) Number of engines determined to be unavailable for inspectionor 
repair under the remedial plan due to exportation, scrappage, orfor 
other reasons (specify).
    (9) Number of engines determined to be ineligible for remedialaction 
due to a failure to properly maintain or use such engines.
    (10) Three copies of any service bulletins which relate to thedefect 
to be corrected and which have not previously been reported.
    (11) Three copies of all communications transmitted to engineowners 
which relate to the defect to be corrected and which have notpreviously 
been submitted.

[[Page 657]]

    (c) If the manufacturer determines that any of theinformation 
requested in paragraph (b) of this section has changed orwas incorrect, 
revised information and an explanatory note shall besubmitted. Answers 
to paragraphs (b)(5), (6), (7), (8), and (9) ofthis section shall be 
cumulative totals.
    (d) The manufacturer shall maintain in a form suitable 
forinspection, such as computer information storage devices or 
cardfiles, the names and addresses of engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the 
remedialplan; and
    (3) Who were determined not to qualify for such remedial actionwhen 
eligibility is conditioned on proper maintenance or use.
    (e) The records described in paragraph (d) of this section shallbe 
made available to the Administrator upon request.



Sec. 94.405  Alternative report formats.

    (a) Any manufacturer may submit a plan for making either of 
thereports required by Sec. Sec. 94.403 and 94.404 oncomputer 
diskettes, magnetic tape or other machine readable format.The plan shall 
be accompanied by sufficient technical detail to allowa determination 
that data requirements of these sections will be metand that the data in 
such format will be usable by EPA.
    (b) Upon approval by the Administrator of the reporting system,the 
manufacturer may use such system until otherwise notified by 
theAdministrator.



Sec. 94.406  Reports filing: record retention.

    (a) The reports required by Sec. Sec. 94.403 and94.404 shall be 
sent to the Designated Officer.
    (b) The information gathered by the manufacturer to compile 
thereports required by Sec. Sec. 94.403 and 94.404 shall beretained for 
not less than 8 years from the date of the manufacture ofthe engines and 
shall be made available to duly authorized officialsof the EPA upon 
request.



Sec. 94.407  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpartshall 
not affect a manufacturer's responsibility to file reports 
orapplications, obtain approval, or give notice under any provision 
oflaw.



Sec. 94.408  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Reportpursuant 
to Sec. 94.403 is inconclusive as to the existenceof a defect subject 
to the warranty provided by section 207(a) of theAct.
    (b) A manufacturer may include on each page of its Emission 
DefectInformation Report a disclaimer stating that the filing of a 
DefectInformation Report pursuant to this subpart is not conclusive as 
tothe applicability of the Production Warranty provided by section207(a) 
of the Act.



         Subpart F_Manufacturer Production Line Testing Programs



Sec. 94.501  Applicability.

    (a) The requirements of this subpart are applicable tomanufacturers 
of engines subject to the provisions of Subpart A ofthis part, excluding 
small-volume manufacturers.
    (b) The provisions of Subpart F of 40 CFR Part 89 
(SelectiveEnforcement Audit) apply to engines subject to the provisions 
ofSubpart A of this part.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov.8, 2002]

    Effective Date Note: At 73 FR 37197, June 30, 2008,Sec. 94.501 was 
amended by adding paragraph (c), effectiveJuly 7, 2008. For the 
convenience of the user, the added text is setforth as follows:



Sec. 94.501  Applicability.

                                * * * * *

    (c) Manufacturers may comply with the provisions of 40 CFR part1042, 
subpart D, instead of the provisions of this subpart F.



Sec. 94.502  Definitions.

    The definitions in Subpart A of this part apply to this subpart.

[[Page 658]]



Sec. 94.503  General requirements.

    (a) For Tier 2 and later Category 1 and Category 2 
engines,manufacturers shall test production line engines in accordance 
withsampling procedures specified in Sec. 94.505 and the testprocedures 
specified in Sec. 94.506. The production-linetesting requirements of 
this part do not apply for other engines.
    (b) Upon request, the Administrator may also allow manufacturersto 
conduct alternate production line testing programs for Category 1and 
Category 2 engines, provided the Administrator determines that 
thealternate production line testing program provides 
equivalentassurance that the engines that are being produced conform to 
theprovisions of this part. As part of this allowance or for 
otherreasons, the Administrator may waive some or all of the 
requirementsof this subpart.
    (c) The requirements of this subpart apply with respect to 
allapplicable standards and FELs of Subpart A of this part, including 
thesupplemental standards of Sec. 94.8(e).
    (d) If you certify an engine family with carryover emission data,as 
described in Sec. 94.206(c), and these equivalent enginefamilies 
consistently pass the production-line testing requirementsover the 
preceding two-year period, you may ask for a reduced testingrate for 
further production-line testing for that family. The minimumtesting rate 
is one engine per engine family. If we reduce yourtesting rate, we may 
limit our approval to any number of model years.In determining whether 
to approve your request, we may consider thenumber of engines that have 
failed the emission tests.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov.8, 2002; 68 
FR 9787, Feb. 28, 2003]



Sec. 94.504  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufactureris 
complying with the provisions of this part, one or more EPAenforcement 
officers may enter during operating hours and uponpresentation of 
credentials any of the following places:
    (1) Any facility, including ports of entry, where any engine is tobe 
introduced into commerce or any emission-related component 
ismanufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to 
amanufacturer's production line testing program or any procedure 
oractivity connected with such test is or was performed;
    (3) Any facility where any test engine is present; and
    (4) Any facility where any record required underSec. 94.509 or 
other document relating to this subpart islocated.
    (b) Upon admission to any facility referred to in paragraph (a) 
ofthis section, EPA enforcement officers are authorized to perform 
thefollowing inspection-related activities:
    (1) To inspect and monitor any aspect of engine 
manufacture,assembly, storage, testing and other procedures, and to 
inspect andmonitor the facilities in which these procedures are 
conducted;
    (2) To inspect and monitor any aspect of engine test procedures 
oractivities, including test engine selection, preparation and 
serviceaccumulation, emission duty cycles, and maintenance and 
verificationof test equipment calibration;
    (3) To inspect and make copies of any records or documents relatedto 
the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine 
andany component used in the assembly thereof that is reasonably 
relatedto the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain 
reasonableassistance without cost from those in charge of a facility to 
help theofficers perform any function listed in this subpart and they 
areauthorized to request the manufacturer to make arrangements with 
thosein charge of a facility operated for the manufacturer benefit 
tofurnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to,clerical, 
copying, interpretation and translation services; the makingavailable on 
an EPA enforcement officer's request of personnel of thefacility being 
inspected during their working hours to inform the EPAenforcement 
officer of how the facility operates and to answer theofficer's

[[Page 659]]

questions; and the performance on request of emissiontests on any engine 
which is being, has been, or will be used forproduction line testing.
    (2) By written request, signed by the Assistant Administrator forAir 
and Radiation or the Assistant Administrator for Enforcement 
andCompliance Assurance, and served on the manufacturer, a 
manufacturermay be compelled to cause the personal appearance of any 
employee atsuch a facility before an EPA enforcement officer. Any such 
employeewho has been instructed by the manufacturer to appear will be 
entitledto be accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant 
orcourt order authorizing the EPA enforcement officers to conduct 
theactivities authorized in this section, as appropriate, to execute 
thefunctions specified in this section. EPA enforcement officers 
mayproceed ex parte to obtain a warrant or court order whether ornot the 
EPA enforcement officers first attempted to seek permissionfrom the 
manufacturer or the party in charge of the facility(ies) inquestion to 
conduct the activities authorized in this section.
    (e) A manufacturer is responsible for locating its foreign 
testingand manufacturing facilities in jurisdictions where local law 
does notprohibit an EPA enforcement officer(s) from conducting the 
activitiesspecified in this section. EPA will not attempt to make 
anyinspections which it has been informed local foreign law prohibits.



Sec. 94.505  Sample selection for testing.

    (a) At the start of each model year, the manufacturer will beginto 
select engines from each Category 1 and Category 2 engine familyfor 
production line testing. Each engine will be selected from the endof the 
production line. Testing shall be performed throughout theentire model 
year to the extent possible. Engines selected shall coverthe broadest 
range of production possible.
    (1)(i) The required sample size for Category 1 enginemanufacturers 
is one percent of projected annual U.S.-directedproduction for all 
Category 1 engine families, provided that no enginetested fails to meet 
applicable emission standards. Test engines shallinclude a proportional 
sample from each engine family. The requiredsample size is zero if a 
manufacturer's projected annual productionfor all Category 1 engine 
families is less than 100.
    (ii) The required sample size for a Category 2 engine family isone 
percent of projected annual U.S.-directed production for thatengine 
family, with a minimum sample size of one test per model yearprovided 
that no engine tested fails to meet applicable emissionstandards.
    (2) Manufacturers may elect to test additional engines. 
Alladditional engines must be tested in accordance with the 
applicabletest procedures of this part.
    (3) The Administrator may reject any engines selected by 
themanufacturer if he/she determines that such engines are 
notrepresentative of actual production.
    (b) The manufacturer must assemble the test engines using the 
samemass production process that will be used for engines to be 
introducedinto commerce.
    (c) No quality control, testing, or assembly procedures will beused 
on any test engine or any portion thereof, including parts 
andsubassemblies, that have not been or will not be used during 
theproduction and assembly of all other engines of that family, 
exceptwith the approval of the Administrator.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.506  Test procedures.

    (a)(1) For engines subject to the provisions of this subpart, 
theprescribed test procedures are those procedures described in Subpart 
Bof this part, except as provided in this section.
    (2) The Administrator may, on the basis of a written applicationby a 
manufacturer, prescribe test procedures other than thosespecified in 
paragraph (a)(1) of this section for any engine he/shedetermines is not 
susceptible to satisfactory testing using proceduresspecified in 
paragraph (a)(1) of this section.
    (3) If test procedures other than those in Subpart B of this 
partwere

[[Page 660]]

used in certification of the engine family being testedunder this 
subpart (other than alternate test procedures necessary fortesting of a 
development engine instead of a low hour engine underSec. 94.9), the 
manufacturer shall use the test proceduresused in certification for 
production line testing.
    (b)(1) The manufacturer may not adjust, repair, prepare, modify,or 
perform any emission test on any test engine unless thisadjustment, 
repair, preparation, modification and/or test isdocumented in the 
manufacturer's engine assembly and inspectionprocedures and is actually 
performed by the manufacturer or unlessthis adjustment, repair, 
preparation, modification and/or test isrequired or permitted under this 
subpart or is approved in advance bythe Administrator.
    (2) Any adjustable engine parameter must be set to values 
orpositions that are within the range specified in the 
approvedapplication for certification.
    (3) The Administrator may adjust or require to be adjusted anyengine 
parameter which the Administrator has determined to be subjectto 
adjustment for certification and production line testing, to anysetting 
within the specified adjustable range of that parameter, asdetermined by 
the Administrator, prior to the performance of any test.
    (c) Service Accumulation/Green Engine Factor. The manufacturershall 
accumulate up to 300 hours of service on the engines to betested. In 
lieu of conducting such service accumulation, themanufacturer may 
establish a Green Engine Factor for each regulatedpollutant for each 
engine family to be used in calculating emissionstest results. The 
manufacturer shall obtain the approval of theAdministrator prior to 
using a Green Engine Factor.
    (d) The manufacturer may not perform any maintenance on testengines 
after selection for testing.
    (e) If an engine is shipped to a facility other than theproduction 
facility for production line testing, and an adjustment orrepair is 
necessary because of such shipment, the engine manufacturermust perform 
the necessary adjustment or repair only after the initialtest of the 
engine, except where the Administrator has determined thatthe test would 
be impossible to perform or would permanently damagethe engine.
    (f) If an engine cannot complete the service accumulation or 
anemission test, because of a malfunction, the manufacturer may 
requestthat the Administrator authorize either the repair of that engine 
orits deletion from the test sequence.
    (g) Retesting. If an engine manufacturer determines that 
anyproduction line emission test of an engine is invalid, the engine 
mustbe retested in accordance with the requirements of this 
subpart.Emission results from all tests must be reported to EPA, 
includingtest results the manufacturer determines are invalid. The 
enginemanufacturer must also include a detailed explanation of the 
reasonsfor invalidating any test in the quarterly report required 
inSec. 94.508(e). In the event a retest is performed, arequest may be 
made to the Administrator, within ten days of the endof the production 
quarter, for permission to substitute the after-repair test results for 
the original test results. The Administratorwill either affirm or deny 
the request by the engine manufacturerwithin ten working days from 
receipt of the request.



Sec. 94.507  Sequence of testing.

    (a) If one or more Category 1 or Category 2 engines fail aproduction 
line test, then the manufacturer must test two additionalengines for 
each engine that fails.
    (b) The two additional engines tested under paragraph (a) of 
thissection shall be selected from either the next fifteen produced 
inthat engine family, or from those engines produced in that 
enginefamily within 48 hours of the completion of the failed test.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.508  Calculation and reporting of test results.

    (a) Manufacturers shall calculate initial test results using 
theapplicable test procedure specified in Sec. 94.506(a). Theseresults 
must also include the Green Engine Factor, if applicable.Round these 
results to the number of

[[Page 661]]

decimal places contained inthe applicable emission standard expressed to 
one additionalsignificant figure.
    (b) To calculate test results, sum the initial test resultsderived 
in paragraph (a) of this section for each test engine, divideby the 
number of tests conducted on the engine, and round to the samenumber of 
decimal places contained in the applicable standardexpressed to one 
additional decimal place. (For example, if theapplicable standard is 
7.8, then round the test results to two placesto the right of the 
decimal.)
    (c) To calculate the final test results for each test engine,apply 
the appropriate deterioration factors, derived in thecertification 
process for the engine family, to the test resultsdescribed in paragraph 
(b) of this section; round to the same numberof decimal places contained 
in the applicable standard expressed toone additional decimal place. 
(For example, if the applicable standardis 7.8, then round the test 
results to two places to the right of thedecimal.)
    (d)(1) If, subsequent to an initial failure of a Category 1 
orCategory 2 production line test, the average of the test results 
forthe failed engine and the two additional engines tested, is 
greaterthan any applicable emission standard or FEL, the engine family 
isdeemed to be in non-compliance with applicable emission standards, 
andthe manufacturer must notify the Administrator within 2 working 
daysof such noncompliance.
    (2) [Reserved]
    (e) Within 30 calendar days of the end of each quarter in 
whichproduction line testing occurs, each manufacturer must submit to 
theAdministrator a report which includes the following information:
    (1) The location and description of the manufacturer's emissiontest 
facilities which were utilized to conduct testing reportedpursuant to 
this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each 
enginefamily was tested;
    (4) A description of the test engines;
    (5) For each test conducted:
    (i) A description of the test engine, including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number;
    (D) Number of hours of service accumulated on engine prior 
totesting; and
    (E) Description of Green Engine Factor; how it is determined andhow 
it is applied;
    (ii) Location(s) where service accumulation was conducted 
anddescription of accumulation procedure and schedule, if applicable;
    (iii) Test number, date, test procedure used, initial test 
resultsbefore and after rounding, and final test results for all 
productionline emission tests conducted, whether valid or invalid, and 
thereason for invalidation of any test results, if applicable;
    (iv) A complete description of any adjustment, modification,repair, 
preparation, maintenance, and testing which was performed onthe test 
engine, has not been reported pursuant to any other paragraphof this 
subpart, and will not be performed on other productionengines;
    (v) Any other information the Administrator may request relevantto 
the determination whether the new engines being manufactured by 
themanufacturer do in fact conform with the regulations with respect 
towhich the certificate of conformity was issued;
    (6) For each failed engine as defined in Sec. 94.510(a),a 
description of the remedy and test results for all retests asrequired by 
Sec. 94.512(g);
    (7) The date of the end of the engine manufacturer's model 
yearproduction for each engine family tested; and
    (8) The following signed statement and endorsement by anauthorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of 
theClean Air Act. This production line testing program was conducted 
incomplete conformance with all applicable regulations under 40 CFR 
part94. No emission-related changes to production processes or 
qualitycontrol procedures for the engine family tested have been made 
duringthis production line testing program that affect engines from 
theproduction line. All data and information reported herein is, to 
thebest of (Company Name) knowledge, true

[[Page 662]]

and accurate. I am awareof the penalties associated with violations of 
the Clean Air Act andthe regulations thereunder.
(Authorized Company Representative.)

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.509  Maintenance of records; submittal of information.

    (a) The manufacturer for any new engine subject to any of 
theprovisions of this subpart must establish, maintain, and retain 
thefollowing adequately organized and indexed records:
    (1) General records. A description of all equipment used to 
testengines in accordance with Sec. 94.503. The equipmentrequirements 
in Subpart B of this part apply to tests performed underthis subpart.
    (2) Individual records. These records pertain to each productionline 
test conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The method by which the Green Engine Factor was calculated 
orthe number of hours of service accumulated on the test engine when 
thetest began and ended;
    (iii) The names of all supervisory personnel involved in theconduct 
of the production line test;
    (iv) A record and description of any adjustment, repair,preparation 
or modification performed on test engines, giving thedate, associated 
time, justification, name(s) of the authorizingpersonnel, and names of 
all supervisory personnel responsible for theconduct of the action;
    (v) If applicable, the date the engine was shipped from theassembly 
plant, associated storage facility or port facility, and thedate the 
engine was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant 
tothis subpart (except tests performed directly by EPA), including 
allindividual worksheets and/or other documentation relating to 
eachtest, or exact copies thereof, in accordance with the 
recordrequirements specified in Subpart B of this part;
    (vii) A brief description of any significant events during 
testingnot otherwise described under this paragraph (a)(2) of this 
section,commencing with the test engine selection process and including 
suchextraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain 
generalrecords, pursuant to paragraph (a)(1) of this section, for each 
testcell that can be used to perform emission testing under this 
subpart.
    (b) The manufacturer must retain all records required to 
bemaintained under this subpart for a period of eight (8) years 
aftercompletion of all testing. Records may be retained as hard copy 
(i.e.,on paper) or reduced to microfilm, floppy disk, or some other 
methodof data storage, depending upon the manufacturer's record 
retentionprocedure; provided, that in every case, all the information 
containedin the hard copy is retained.
    (c) The manufacturer must, upon request by the Administrator,submit 
the following information with regard to engine production:
    (1) Projected production for each configuration within each 
enginefamily for which certification has been requested and/or approved.
    (2) Number of engines, by configuration and assembly plant,scheduled 
for production.
    (d) Nothing in this section limits the Administrator's discretionto 
require a manufacturer to establish, maintain, retain or submit toEPA 
information not specified by this section.
    (e) All reports, submissions, notifications, and requests 
forapproval made under this subpart must be addressed to the 
DesignatedOfficer.
    (f) The manufacturer must electronically submit the results of 
itsproduction line testing using an EPA information format.



Sec. 94.510  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final test results pursuant toSec. 
94.508(c), for one or more of the applicablepollutants, exceed an 
applicable emission standard or FEL.
    (b) A Category 1 or Category 2 engine family is deemed to be 
innoncompliance, for purposes of this subpart, if at any time 
throughoutthe model year, the average of an initial failed engine and 
the twoadditional engines tested,

[[Page 663]]

is greater than any applicableemission standard or FEL.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.511  [Reserved]



Sec. 94.512  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to 
anyengine that fails a production line test pursuant toSec. 94.510(a), 
effective from the time the testing of thatengine is completed.
    (b) The Administrator may suspend the certificate of conformityfor 
an engine family which is in noncompliance pursuant toSec. 94.510(b), 
thirty days after the engine family isdeemed to be in noncompliance.
    (c) If the results of testing pursuant to this subpart indicatethat 
engines of a particular family produced at one plant of amanufacturer do 
not conform to the regulations with respect to whichthe certificate of 
conformity was issued, the Administrator maysuspend the certificate of 
conformity with respect to that family forengines manufactured by the 
manufacturer at all other plants.
    (d) The Administrator may suspend a certificate of conformity forany 
engine family in whole or in part if:
    (1) The manufacturer fails to comply with any of the requirementsof 
this subpart.
    (2) The manufacturer submits false or incomplete information inany 
report or information provided to the Administrator under thissubpart.
    (3) The manufacturer renders inaccurate any test data submittedunder 
this subpart.
    (4) An EPA enforcement officer is denied the opportunity toconduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct 
activitiesauthorized in Sec. 94.504 for any reason.
    (e) The Administrator shall notify the manufacturer in writing ofany 
suspension or revocation of a certificate of conformity in wholeor in 
part; a suspension or revocation is effective upon receipt ofsuch 
notification or thirty days from the time an engine family isdeemed to 
be in noncompliance under Sec. Sec. 94.508(d),94.510(a), or 94.510(b), 
whichever is earlier, except that thecertificate is immediately 
suspended with respect to any failedengines as provided for in paragraph 
(a) of this section.
    (f) The Administrator may revoke a certificate of conformity foran 
engine family when the certificate has been suspended pursuant 
toparagraph (b) or (c) of this section if the remedy is one requiring 
adesign change or changes to the engine and/or emission control systemas 
described in the application for certification of the affectedengine 
family.
    (g) Once a certificate has been suspended for a failed engine, 
asprovided for in paragraph (a) of this section, the manufacturer 
musttake the following actions before the certificate is reinstated 
forthat failed engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the engine conforms to applicable standardsor 
family emission limits by retesting if applicable, the engine 
inaccordance with this part; and
    (3) Submit a written report to the Administrator, after 
successfulcompletion of testing on the failed engine, which contains 
adescription of the remedy and test results for each engine in 
additionto other information that may be required by this part.
    (h) Once a certificate for a failed engine family has beensuspended 
pursuant to paragraph (b) or (c) of this section, themanufacturer must 
take the following actions before the Administratorwill consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifiesthe 
reason for the noncompliance of the engines, describes the 
remedy,including a description of any quality control and/or 
qualityassurance measures to be taken by the manufacturer to prevent 
futureoccurrences of the problem, and states the date on which the 
remedieswill be implemented.
    (2) Demonstrate that the engine family for which the certificateof 
conformity has been suspended does in fact comply with theregulations of 
this part by testing engines selected from normalproduction runs of that 
engine family. Such testing must comply withthe provisions of this 
subpart. If the

[[Page 664]]

manufacturer elects tocontinue testing individual engines after 
suspension of a certificate,the certificate is reinstated for any engine 
actually determined to bein conformance with the applicable standards or 
family emission limitsthrough testing in accordance with the applicable 
test procedures,provided that the Administrator has not revoked the 
certificatepursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, 
ifthe manufacturer desires to continue introduction into commerce of 
amodified version of that family, the following actions must be 
takenbefore the Administrator may issue a certificate for that 
modifiedfamily:
    (1) If the Administrator determines that the change(s) in 
enginedesign may have an effect on emission performance deterioration, 
theAdministrator shall notify the manufacturer, within five working 
daysafter receipt of the report in paragraph (h)(1) of this 
section,whether subsequent testing under this subpart will be sufficient 
toevaluate the change or changes or whether additional testing will 
berequired; and
    (2) After implementing the change or changes intended to remedythe 
nonconformity, the manufacturer must demonstrate that the modifiedengine 
family does in fact conform with the regulations of this partby testing 
engines selected from normal production runs of that enginefamily. When 
both of these requirements are met, the Administratorshall reissue the 
certificate or issue a new certificate, as the casemay be, to include 
that family. If this subsequent testing revealsfailing data the 
revocation remains in effect.
    (j) At any time subsequent to an initial suspension of acertificate 
of conformity for a test engine pursuant to paragraph (a)of this 
section, but not later than 30 days (or such other period asmay be 
allowed by the Administrator) after notification of theAdministrator's 
decision to suspend or revoke a certificate ofconformity in whole or in 
part pursuant to paragraph (b), (c), or (f)of this section, a 
manufacturer may request a hearing as to whetherthe tests have been 
properly conducted or any sampling methods havebeen properly applied.
    (k) Any suspension of a certificate of conformity under 
paragraphs(a),(b),(c) and (d) of this section:
    (1) Shall be made only after the manufacturer concerned has 
beenoffered an opportunity for a hearing conducted in accordance 
withSec. Sec. 94.513, 94.514, and 94.515; and
    (2) Need not apply to engines no longer in the possession of 
themanufacturer.
    (l) After the Administrator suspends or revokes a certificate 
ofconformity pursuant to this section or voids a certificate 
ofconformity under paragraph Sec. 94.215, and prior to thecommencement 
of a hearing under Sec. 94.513, if themanufacturer demonstrates to the 
Administrator's satisfaction that thedecision to suspend, revoke, or 
void the certificate was based onerroneous information, the 
Administrator shall reinstate thecertificate.
    (m) To permit a manufacturer to avoid storing non-test engineswhile 
conducting subsequent testing of the noncomplying family, amanufacturer 
may request that the Administrator conditionallyreinstate the 
certificate for that family. The Administrator mayreinstate the 
certificate subject to the following condition: themanufacturer must 
commit to recall all engines of that family producedfrom the time the 
certificate is conditionally reinstated if thefamily fails subsequent 
testing and must commit to remedy anynonconformity at no expense to the 
owner.



Sec. 94.513  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator'sdecision 
to suspend or revoke a certificate or disputes the basis foran automatic 
suspension pursuant to Sec. 94.512(a), themanufacturer may request a 
public hearing.
    (b) The manufacturer's request shall be filed with theAdministrator 
not later than 30 days after the Administrator'snotification of his or 
her decision to suspend or revoke, unlessotherwise specified by the 
Administrator. The manufacturer shallsimultaneously serve two copies of 
this request upon

[[Page 665]]

theDesignated Officer and file two copies with the Hearing Clerk of 
theAgency. Failure of the manufacturer to request a hearing within 
thetime provided constitutes a waiver of the right to a 
hearing.Subsequent to the expiration of the period for requesting a 
hearing asof right, the Administrator may, in his or her discretion and 
for goodcause shown, grant the manufacturer a hearing to contest 
thesuspension or revocation.
    (c) A manufacturer shall include in the request for a publichearing:
    (1) A statement as to which configuration(s) within a family is tobe 
the subject of the hearing;
    (2) A concise statement of the issues to be raised by 
themanufacturer at the hearing, except that in the case of the 
hearingrequested under Sec. 94.512(j), the hearing is restricted tothe 
following issues:
    (i) Whether tests have been properly conducted (specifically,whether 
the tests were conducted in accordance with applicableregulations under 
this part and whether test equipment was properlycalibrated and 
functioning);
    (ii) Whether there exists a basis for distinguishing enginesproduced 
at plants other than the one from which engines were selectedfor testing 
which would invalidate the Administrator's decision underSec. 
94.512(c));
    (3) A statement specifying reasons why the manufacturer believesit 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the 
manufacturer'sposition on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept onfile 
in the Office of the Hearing Clerk and will be made available tothe 
public during Agency business hours.



Sec. 94.514  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law 
Judgeappointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (b) The Judicial Officer shall be an officer or employee of 
theAgency appointed as a Judicial Officer by the Administrator, 
pursuantto this section, who shall meet the qualifications and 
performfunctions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent 
ortemporary employee of the Agency who performs other duties for 
theAgency. The Judicial Officer shall not be employed by the Office 
ofEnforcement or have any connection with the preparation orpresentation 
of evidence for a hearing held pursuant to this subpart.The Judicial 
Officer shall be a graduate of an accredited law schooland a member in 
good standing of a recognized Bar Association of anystate or the 
District of Columbia.
    (2) Functions. The Administrator may consult with theJudicial 
Officer or delegate all or part of the Administrator'sauthority to act 
in a given case under this section to a JudicialOfficer, provided that 
this delegation does not preclude the JudicialOfficer from referring any 
motion or case to the Administrator whenthe Judicial Officer determines 
such referral to be appropriate.
    (c) For the purposes of this section, one or more JudicialOfficers 
may be designated by the Administrator. As work requires, aJudicial 
Officer may be designated to act for the purposes of aparticular case.
    (d)(1) In the case of a hearing requested underSec. 94.512(j), when 
it clearly appears from the data andother information contained in the 
request for a hearing that nogenuine and substantial question of fact or 
law exists with respect tothe issues specified in Sec. 94.513(c)(2), 
the Administratormay enter an order denying the request for a hearing 
and reaffirmingthe original decision to suspend or revoke a certificate 
ofconformity.
    (2) In the case of a hearing requested under Sec. 94.513to 
challenge a suspension of a certificate of conformity for thereason(s) 
specified in Sec. 94.512(d), when it clearlyappears from the data and 
other information contained in the requestfor the hearing that no 
genuine and substantial question of fact orlaw exists with respect to 
the issue of whether the refusal to complywith this subpart was caused 
by conditions and circumstances outsidethe control of the manufacturer, 
the Administrator may enter an orderdenying the

[[Page 666]]

request for a hearing and suspending the certificateof conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of thissection 
has the force and effect of a final decision of theAdministrator, as 
issued pursuant to Sec. 94.516.
    (4) If the Administrator determines that a genuine and 
substantialquestion of fact or law does exist with respect to any of the 
issuesreferred to in paragraphs (d)(1) and (d)(2) of this section, 
theAdministrator shall grant the request for a hearing and publish 
anotice of public hearing in the Federal Register or by suchother means 
as the Administrator finds appropriate to provide noticeto the public.
    (e) Filing and service. (1) An original and two copies ofall 
documents or papers required or permitted to be filed pursuant tothis 
section and Sec. 94.513(c) must be filed with theHearing Clerk of the 
Agency. Filing is considered timely if mailed, asdetermined by the 
postmark, to the Hearing Clerk within the timeallowed by this section 
and Sec. 94.513(b). If filing is tobe accomplished by mailing, the 
documents must be sent to the addressset forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented 
inwritten form. Copies of written testimony will be served upon 
allparties as soon as practicable prior to the start of the hearing. 
Acertificate of service will be provided on or accompany each documentor 
paper filed with the Hearing Clerk. Documents to be served upon 
theDirector of the Engine Programs and Compliance Division must be 
sentby registered mail to: Director, Engine Programs and 
ComplianceDivision 6403-J, U.S. Environmental Protection Agency, 401 
MSt. SW., Washington, DC 20460. Service by registered mail is 
completeupon mailing.
    (f) Computation of time. (1) In computing any period of 
timeprescribed or allowed by this section, except as otherwise 
provided,the day of the act or event from which the designated period of 
timebegins to run is not included. Saturdays, Sundays, and federal 
legalholidays are included in computing the period allowed for the 
filingof any document or paper, except that when the period expires on 
aSaturday, Sunday, or federal legal holiday, the period is extended 
toinclude the next following business day.
    (2) A prescribed period of time within which a party is requiredor 
permitted to do an act is computed from the time of service, exceptthat 
when service is accomplished by mail, three days will be added tothe 
prescribed period.
    (g) Consolidation. The Administrator or the PresidingOfficer in his 
or her discretion may consolidate two or moreproceedings to be held 
under this section for the purpose of resolvingone or more issues 
whenever it appears that consolidation willexpedite or simplify 
consideration of these issues. Consolidation doesnot affect the right of 
any party to raise issues that could have beenraised if consolidation 
had not occurred.
    (h) Hearing date. To the extent possible hearings underSec. 94.513 
will be scheduled to commence within 14 days ofreceipt of the request 
for a hearing.



Sec. 94.515  Hearing procedures.

    The procedures provided in 40 CFR 86.1014-84(i) through (s)apply for 
hearings requested pursuant to Sec. 94.513regarding suspension, 
revocation, or voiding of a certificate ofconformity.



Sec. 94.516  Appeal of hearing decision.

    The procedures provided in 40 CFR 86.1014-84 (t) through(aa) apply 
for appeals filed with respect to hearings held pursuant toSec. 94.515.



Sec. 94.517  Treatment of confidential information.

    Except for information required by Sec. 94.508(e)(2) andquarterly 
emission test results described in Sec. 94.508(e),information submitted 
pursuant to this subpart shall be made availableto the public by EPA, 
notwithstanding any claim of confidentialitymade by the submitter. The 
provisions for treatment of confidentialinformation described in Sec. 
94.4 apply to the informationrequired by Sec. 94.508(e)(2) and 
quarterly emission testresults described in Sec. 94.508(e).

Subpart G [Reserved]

[[Page 667]]



                      Subpart H_Recall Regulations



Sec. 94.701  Applicability.

    The requirements of this subpart are applicable to all 
enginessubject to the provisions of this part.



Sec. 94.702  Definitions.

    The definitions in Subpart A of this part apply to this subpart.



Sec. 94.703  Applicability of 40 CFR part 85, subpart S.

    (a) Engines subject to provisions of this part are subject torecall 
regulations specified in 40 CFR part 85, subpart S, except forthe items 
set forth in this section.
    (b) In 40 CFR 85.1801, section 216 of the Clean Air Act 
applies,rather than section 214 of the Act.
    (c) In 40 CFR 85.1802(a), section 213 of the Act applies, ratherthan 
section 202 of the Act.
    (d) In 40 CFR 85.1803(a) and 85.1805(a)(1) the reference to``family 
emission limits'' as defined in this part 94promulgated under section 
213 of the Act applies, rather than thereference to ``family particulate 
emission limits as defined in40 CFR part 86 promulgated under section 
202 of the Act''.
    (e) Throughout the subpart references to ``engines''apply rather 
than references to ``vehicles or engines''.



             Subpart I_Importation of Nonconforming Engines



Sec. 94.801  Applicability.

    (a) Except where otherwise indicated, this subpart is applicableto 
importers of engines (and vessels containing engines) for which 
theAdministrator has promulgated regulations under this part 
prescribingemission standards, that are offered for importation or 
imported intothe United States, but which engines, at the time of 
importation orbeing offered for importation, are not covered by 
certificates ofconformity issued under section 213 and section 206(a) of 
the CleanAir Act (that is, which are nonconforming engines as defined 
inSec. 94.2), and this part. Compliance with regulations underthis 
subpart does not relieve any person or entity from compliancewith other 
applicable provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importationof 
engines into the Customs territory of the United States are setforth in 
U.S. Customs Service regulations (19 CFR chapter I).

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.802  Definitions.

    The definitions of Subpart A of this part apply to this subpart.



Sec. 94.803  Admission.

    (a) A nonconforming engine offered for importation may be 
admittedinto the United States pursuant to the provisions of this 
subpart.Subpart C of this part, including Sec. 94.222, describes howto 
certify engines installed on vessels before they are imported.
    (b) To obtain admission, the importer must submit to 
theAdministrator a written request for approval containing the 
following:
    (1) Identification of the importer of the engine and theimporter's 
address, telephone number, and taxpayer identificationnumber;
    (2) Identification of the engine's owner, the owner's 
address,telephone number, and taxpayer identification number;
    (3) Identification of the engine including make, 
model,identification number, and original production year;
    (4) Information indicating the provision in this subpart underwhich 
the engine is to be imported, including a demonstration of howit 
qualifies for the requested exemption;
    (5) Identification of the place(s) where the engine is to bestored 
until EPA approval of the importer's application to theAdministrator for 
final admission;
    (6) Authorization for EPA enforcement officers to conductinspections 
or testing otherwise permitted by the Act or regulationsthereunder; and
    (7) Such other information as is deemed necessary by 
theAdministrator.



Sec. 94.804  Exemptions.

    (a) General provisions. (1) Unless otherwise specified, anyperson 
may apply

[[Page 668]]

for the exemptions allowed by this section.
    (2) Paragraph (b) of this section describes the provisions thatapply 
to temporary exemptions. Paragraph (c) of this section 
describesprovisions that apply to permanent exemptions.
    (3) Applications for exemption under this section shall be mailedto 
the Designated Officer.
    (b) Notwithstanding other requirements of this subpart, 
anonconforming engine that qualifies for a temporary exemption underthis 
paragraph (b) may be conditionally admitted into the UnitedStates if 
prior written approval for the conditional admission isobtained from the 
Administrator. Conditional admission is to be underbond. The 
Administrator may request that the U.S. Customs Servicerequire a 
specific bond amount to ensure compliance with therequirements of the 
Act and this subpart. A written request for atemporary exemption from 
the Administrator shall contain theinformation required in Sec. 94.803. 
Noncompliance with theprovisions of this paragraph (b) will be 
considered unlawfulimportation and may result in the forfeiture of the 
total amount ofthe bond, exportation of the engine, and/or imposition of 
civilpenalties.
    (1) Exemption for repairs or alterations. A person mayconditionally 
import under bond a nonconforming engine solely forpurpose of repair(s) 
or alteration(s). The engine may not be operatedin the United States 
other than for the sole purpose of repair oralteration or shipment to 
the point of repair or alteration and to theport of export. It may not 
be sold or leased in the United States andis to be exported upon 
completion of the repair(s) or alteration(s).
    (2) Testing exemption. A person may conditionally importunder bond a 
nonconforming engine for testing, subject to therequirements of Sec. 
94.905. A test engine may be operatedin the United States provided that 
the operation is an integral partof the test. This exemption is limited 
to a period not exceeding oneyear from the date of importation unless a 
request is made by theappropriate importer, and subsequently granted by 
EPA, concerning theengine in accordance with Sec. 94.905 for a 
subsequent one-year period.
    (3) Display exemptions. A person may conditionally importunder bond 
a nonconforming engine solely for display purposes, subjectto both of 
the following requirements:
    (i) A display engine may be imported by any person for 
purposesrelated to a business or the public interest. Such purposes do 
notinclude collections normally inaccessible or unavailable to the 
publicon a daily basis, display of an engine at a dealership, private 
use,or other purpose that the Administrator determines is not 
appropriatefor display exemptions. A display engine may not be sold or 
leased inthe United States and may not be operated in the United States 
exceptfor the operation incident and necessary to the display purpose.
    (ii) A display exemption is granted for 12 months or for theduration 
of the display purpose, whichever is shorter. Extensions ofup to 12 
months each are available upon approval by the Administrator.In no 
circumstances, however, may the total period of exemption exceed36 
months.
    (c) A nonconforming engine that qualifies for a permanentexemption 
under this paragraph (c) may be admitted into the UnitedStates if prior 
written approval is obtained from the Administrator. Awritten request 
for a permanent exemption from the Administrator shallcontain the 
information required in Sec. 94.803.Noncompliance with the provisions 
of this paragraph (c) will beconsidered unlawful importation and may 
result in the exportation ofthe engine and/or imposition of civil 
penalties.
    (1) National security exemption. Notwithstanding any 
otherrequirement of this subpart, an engine may be permanently 
importedinto the United States under the national security exemption 
found inSec. 94.908.
    (2) Competition exemption. Notwithstanding any otherrequirement of 
this subpart, an engine may be permanently importedinto the United 
States under the competition exemption found inSec. 94.906(c).
    (3) Incomplete marine engine exemption. An engine that isintended to 
be modified prior to being placed into service

[[Page 669]]

as amarine engine may be imported in a nonconforming 
configuration,subject to the following provisions:
    (i) The modified engine must be covered by a valid marine 
enginecertificate issued under this part prior to importation and held 
by apost-manufacture marinizer. (Note: Prior to 
certification,manufacturers and post-manufacture marinizers may import 
uncertifiedengines for testing, as specified in paragraph (b)(2) of 
thissection.)
    (ii) The engine may not be placed into non-marine service prior 
tobeing installed in a vessel.
    (iii) The importer must obtain written approval from 
theAdministrator prior to admission.
    (iv) The engine and engine container must be labeled as specifiedby 
the Administrator.
    (v) A manufacturer importing an engine under this exemption 
mustmodify the engine to comply with the requirements of this part.



Sec. 94.805  Prohibited acts; penalties.

    (a) The importation of an engine (including an engine incorporatedin 
an imported marine vessel) which is not covered by a certificate 
ofconformity other than in accordance with this subpart and the 
entryregulations of the U.S. Customs Service is prohibited. Failure 
tocomply with this section is a violation of section 213(d) and 
section203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period 
ofconditional admission, the importer of an engine may not:
    (1) Operate the engine in the United States; or
    (2) Sell or lease or offer the engine for sale or lease.
    (c) An engine conditionally admitted pursuant toSec. 94.804 and not 
otherwise permanently exempted orexcluded by the end of the period of 
conditional admission, or withinsuch additional time as the 
Administrator and the U.S. Customs Servicemay allow, is deemed to be 
unlawfully imported into the United Statesin violation of section 213(d) 
and section 203 of the Act, unless theengine has been delivered to the 
U.S. Customs Service for export orother disposition under applicable 
Customs laws and regulations by theend of the period of conditional 
admission. An engine not so deliveredis subject to seizure by the U.S. 
Customs Service.
    (d) An importer who violates section 213(d) and section 203 of 
theAct is subject to a civil penalty under section 205 of the Act 
andSec. 94.1106. In addition to the penalty provided in the Actand 
Sec. 94.1106, where applicable, a person or entity whoimports an engine 
under the exemption provisions ofSec. 94.804 and, who fails to deliver 
the engine to the U.S.Customs Service by the end of the period of 
conditional admission isliable for liquidated damages in the amount of 
the bond required byapplicable Customs laws and regulations.



Sec. 94.806  Importation of partially complete engines.

    The provisions of 40 CFR 1068.330 apply for importation ofpartially 
complete engines, or engines that will be modified forapplications other 
than those covered by this part 94.

[70 FR 40459, July 13, 2005]



              Subpart J_Exclusion and Exemption Provisions



Sec. 94.901  Purpose and applicability.

    The provisions of this subpart identify excluded engines 
(i.e.,engines not covered by the Act) and allow for the exemption of 
enginesfrom certain provisions of this part. The applicability of 
theexclusions is described in Sec. 94.903, and theapplicability of the 
exemption allowances is described inSec. Sec. 94.904 through 94.909.



Sec. 94.902  Definitions.

    The definitions of Subpart A of this part apply to this subpart.



Sec. 94.903  Exclusions.

    (a) Upon written request with supporting documentation, EPA willmake 
written determinations as to whether certain engines are excludedfrom 
applicability of this part. Any engines that are determined to 
beexcluded are not subject to the regulations under this part. 
Requeststo determine whether certain engines are excluded should be sent 
tothe Designated Officer.

[[Page 670]]

    (b) EPA will maintain a list of models of engines that havebeen 
determined to be excluded from coverage under this part. Thislist will 
be available to the public and may be obtained by writing tothe address 
in paragraph (a) of this section.
    (c) In addition to the engines excluded in paragraph (a) of 
thissection, certain engines are not subject to the requirements 
andprohibitions of this part because they are excluded from 
thedefinitions of ``marine engine'' in Sec. 94.2.



Sec. 94.904  Exemptions.

    (a) Except as specified otherwise in this subpart, the provisionsof 
Sec. Sec. 94.904 through 94.913 exempt certain newengines from the 
standards, other requirements, and prohibitions ofthis part, except for 
the requirements of this subpart and therequirements of Sec. 94.1104. 
Additional requirements mayapply for imported engines; these are 
described in subpart I of thispart.
    (b)(1) Any person may request a testing exemption subject to 
theprovisions of Sec. 94.905.
    (2) Any engine manufacturer may request a national securityexemption 
subject to the provisions of Sec. 94.908.
    (3) Engines manufactured for export purposes are exempt 
withoutapplication, subject to the provisions of Sec. 94.909,except as 
otherwise specified by Sec. 94.909.
    (4) Manufacturer-owned engines are exempt without 
application,subject to the provisions of Sec. 94.906(a).
    (5) Display engines are exempt without application, subject to 
theprovisions of Sec. 94.906(b). This does not apply toimported engines 
(see Sec. 94.804).
    (6) Engines used solely for competition are exempt, subject to 
theprovisions of Sec. 94.906(c).
    (c) If you want to take an action with respect to an exempted 
orexcluded engine that is prohibited by the exemption or exclusion, 
suchas selling it, you need to certify the engine. We will issue 
acertificate of conformity if you send us an application 
forcertification showing that you meet all the applicable 
requirementsfrom this part 94 and pay the appropriate fee. Also, in some 
cases, wemay allow manufacturers to modify the engine as needed to make 
itidentical to engines already covered by a certificate. We would 
basesuch an approval on our review of any appropriate documentation. 
Theseengines must have emission control information labels that 
accuratelydescribe their status.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003; 70 
FR 40459, July 13, 2005]



Sec. 94.905  Testing exemption.

    (a)(1) The Administrator may exempt from the standards and/orother 
requirements and prohibitions of this part new engines that arebeing 
used solely for the purpose of conducting a test program. Anyperson 
requesting an exemption for the purpose of conducting a testprogram must 
demonstrate the following:
    (i) That the proposed test program has a purpose which constitutesan 
appropriate basis for an exemption in accordance this section;
    (ii) That the proposed test program necessitates the granting ofan 
exemption;
    (iii) That the proposed test program exhibits reasonableness 
inscope; and
    (iv) That the proposed test program exhibits a degree of 
oversightand control consonant with the purpose of the test program and 
EPA'smonitoring requirements.
    (2) Paragraphs (b), (c), (d), and (e) of this section describewhat 
constitutes a sufficient demonstration for each of the fourelements 
identified in paragraphs (a)(1)(i) through (iv) of thissection.
    (b) With respect to the purpose of the proposed test program, 
anappropriate purpose would be research, investigations, 
studies,demonstrations, technology development, or training, but not 
nationalsecurity. A concise statement of purpose is a required item 
ofinformation.
    (c) With respect to the necessity that an exemption be 
granted,necessity arises from an inability to achieve the stated purpose 
in apracticable manner without performing or causing to be performed 
oneor more of the prohibited acts under Sec. 94.1103. Inappropriate 
circumstances, time constraints may be a sufficient basisfor necessity, 
but the cost of certification alone, in the

[[Page 671]]

absence of extraordinary circumstances, is not a basis fornecessity.
    (d) With respect to reasonableness, a test program must exhibit 
aduration of reasonable length and affect a reasonable number ofengines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration; and
    (2) The maximum number of engines involved.
    (e) With respect to control, the test program must 
incorporateprocedures consistent with the purpose of the test and be 
capable ofaffording EPA monitoring capability. As a minimum, required 
items ofinformation include:
    (1) The technical nature of the testing;
    (2) The location(s) of the testing;
    (3) The time or work duration of the testing;
    (4) The ownership arrangement with regard to the engines involvedin 
the testing;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will 
beidentified, recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new engines may request a testing exemptionto 
cover engines intended for use in test programs planned oranticipated 
over the course of a subsequent two-year period. Unlessotherwise 
required by the Director, Engine Programs and ComplianceDivision, a 
manufacturer requesting such an exemption need onlyfurnish the 
information required by paragraphs (a)(1) and (d)(2) ofthis section 
along with a description of the recordkeeping and controlprocedures that 
will be employed to assure that the engines are usedfor purposes 
consistent with paragraph (a) of this section.
    (g) For engines being used for the purpose of developing 
afundamentally new emission control technology related either to 
analternative fuel or an aftertreatment device, the Administrator 
mayexempt the engine from some or all of the applicable standards of 
thispart for the full useful life of the engine, subject to the 
provisionsof paragraphs (a) through (f) of this section.



Sec. 94.906  Manufacturer-owned exemption, display exemption, and competitionexemption.

    (a) Manufacturer-owned exemption. Any manufacturer-ownedengine, as 
defined by Sec. 94.2, is exempt fromSec. 94.1103, without application, 
if the manufacturercomplies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain 
thefollowing adequately organized and indexed information on 
eachexempted engine:
    (i) engine identification number;
    (ii) Use of the engine on exempt status; and
    (iii) Final disposition of any engine removed from exempt status.
    (2) The manufacturer must provide right of entry and access tothese 
records to EPA Enforcement Officers as outlined inSec. 94.208.
    (3) The manufacturer must permanently affix a label to each engineon 
exempt status, unless the requirement is waived or an alternateprocedure 
is approved by the Director, Engine Programs and ComplianceDivision. 
This label should:
    (i) Be affixed in a readily visible portion of the engine;
    (ii) Be attached in such a manner that cannot be removed 
withoutdestruction or defacement;
    (iii) State in the English language and in block letters andnumerals 
of a color that contrasts with the background of the label,the following 
information:
    (A) The label heading ``Emission ControlInformation'';
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and modelyear 
of engine; or person of office to be contacted for furtherinformation 
about the engine;
    (D) The statement ``This engine is exempt from theprohibitions of 40 
CFR 94.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents 
amanufacturer from including any other information it desires on 
thelabel.

[[Page 672]]

    (5) The engine is not used in revenue-generating service, orsold.
    (b) Display exemption. An uncertified engine that is to beused 
solely for display purposes, and that will only be operatedincident and 
necessary to the display purpose, and will not be soldunless an 
applicable certificate of conformity has been obtained forthe engine, is 
exempt without request from the standards of this part.This does not 
apply to imported engines (see Sec. 94.804).
    (c) Competition exemption. The Administrator may exempt,upon 
request, engines that are intended by the manufacturer to be usedsolely 
for competition. Engines that are modified after they have beenplaced 
into service and are used solely for competition are exemptwithout 
request.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb.28, 2003]



Sec. 94.907  Engine dressing exemption.

    (a) General provisions. If you are an engine manufacturer,this 
section allows you to introduce new marine engines into commerceif they 
are already certified to the requirements that apply tocompression-
ignition engines under 40 CFR parts 85 and 86 or 40 CFRpart 89, 92 or 
1039 for the appropriate model year. If you comply withall the 
provisions of this section, we consider the certificate issuedunder 40 
CFR part 86, 89, 92, or 1039 for each engine to also be avalid 
certificate of conformity under this part 94 for its model year,without 
a separate application for certification under therequirements of this 
part 94.
    (b) Boat-builder provisions. If you are not an enginemanufacturer, 
you may install an engine certified for the appropriatemodel year under 
40 CFR part 86, 89, 92, or 1039 in a marine vessel aslong as you do not 
make any of the changes described in paragraph (d)(3) of this section 
and you meet the requirements of paragraph (e) ofthis section. If you 
modify the non-marine engine in any of the waysdescribed in paragraph 
(d)(3) of this section, we will consider you amanufacturer of a new 
marine engine. Such engine modifications preventyou from using the 
provisions of this section.
    (c) Liability. Engines for which you meet the requirementsof this 
section are exempt from all the requirements and prohibitionsof this 
part, except for those specified in this section. Enginesexempted under 
this section must meet all the applicable requirementsfrom 40 CFR parts 
85 and 86 or 40 CFR part 89, 92, or 1039. Thisparagraph (c) applies to 
engine manufacturers, boat builders who usesuch an engine, and all other 
persons as if the engine were used inits originally intended 
application. The prohibited acts ofSec. 94.1103(a)(1) apply to these 
new engines and vessels;however, we consider the certificate issued 
under 40 CFR part 86, 89,92, or 1039 for each engine to also be a valid 
certificate ofconformity under this part 94 for its model year. If we 
make adetermination that these engines do not conform to the 
regulationsduring their useful life, we may require you to recall them 
under thispart 94 or under 40 CFR part 85, 89, 92, or 1039.
    (d) Specific requirements. If you are an engine manufacturerand meet 
all the following criteria and requirements regarding yournew marine 
engine, the engine is eligible for an exemption under thissection:
    (1) You must produce it by marinizing an engine covered by a 
validcertificate of conformity from one of the following programs:
    (i) Heavy-duty highway engines (40 CFR part 86).
    (ii) Land-based nonroad diesel engines (40 CFR part 89 or 1039).
    (iii) Locomotive engines (40 CFR part 92).
    (2) The engine must have the label required under 40 CFR part 86,89, 
92, or 1039.
    (3) You must not make any changes to the certified engine thatcould 
reasonably be expected to increase its emissions. For example,if you 
make any of the following changes to one of these engines, youdo not 
qualify for the engine dressing exemption:
    (i) Change any fuel system parameters from the 
certifiedconfiguration, or change, remove, or fail to properly install 
anyother component, element of design, or calibration specified in 
theengine manufacturer's application for certification. This includes

[[Page 673]]

aftertreatment devices and all related components.
    (ii) Replacing an original turbocharger, except that small-
volumemanufacturers of recreational engines may replace an 
originalturbocharger with one that matches the performance of the 
originalturbocharger.
    (iii) Modify or design the marine engine cooling or 
aftercoolingsystem so that temperatures or heat rejection rates are 
outside theoriginal engine manufacturer's specified ranges.
    (4) You must show that fewer than 50 percent of the enginefamily's 
total sales in the United States are used in marineapplications. This 
includes engines used in any application, withoutregard to which company 
manufactures the vessel or equipment. Showthis as follows:
    (i) If you are the original manufacturer of the engine, base 
thisshowing on your sales information.
    (ii) In all other cases, you must get the original manufacturer 
ofthe engine to confirm this based on its sales information.
    (e) If you are an engine manufacturer or boat builder using 
thisexemption, you must do all of the following:
    (1) Make sure the original engine label will remain clearlyvisible 
after installation in the vessel.
    (2) Add a permanent supplemental label to the engine in a 
positionwhere it will remain clearly visible after installation in the 
vessel.In your engine label, do the following:
    (i) Include the heading: ``Marine Engine Emission 
ControlInformation''.
    (ii) Include your full corporate name and trademark.
    (iii) State: ``This engine was marinized without affectingits 
emission controls.''
    (iv) State the date you finished marinizing the engine (month 
andyear).
    (3) Send a signed letter to the Designated Officer by the end ofeach 
calendar year (or less often if we tell you) with all thefollowing 
information:
    (i) Identify your full corporate name, address, and telephonenumber.
    (ii) List the engine models for which you expect to use 
thisexemption in the coming year and describe your basis for meeting 
thesales restrictions of paragraph (d)(4) of this section.
    (iii) State: ``We prepare each listed engine model formarine 
application without making any changes that could increase itscertified 
emission levels, as described in 40 CFR 94.907.''
    (f) Engine inventories. In general you may use up yourinventory of 
engines that are not certified to new marine emissionstandards if they 
were originally manufactured before the date of thenew standards. 
However, stockpiling these engines is a violation ofSec. 
94.1103(a)(1)(i)(A).
    (g) Failure to comply. If your engines do not meet thecriteria 
listed in paragraph (d) of this section, they will be subjectto the 
standards, requirements, and prohibitions of this part 94 andthe 
certificate issued under 40 CFR part 86, 89, 92, or 1039 will notbe 
deemed to also be a certificate issued under this part 94.Introducing 
these engines into commerce without a valid exemption orcertificate of 
conformity under this part violates the prohibitions in40 CFR 
94.1103(a)(1).
    (h) Data submission. (1) If you are the originalmanufacturer and 
marinizer of an exempted engine, you must send usemission test data on 
the appropriate marine duty cycles. You caninclude the data in your 
application for certification or in theletter described in paragraph 
(e)(3) of this section.
    (2) If you are the original manufacturer of an exempted enginethat 
is marinized by a post-manufacture marinizer, you may be requiredto send 
us emission test data on the appropriate marine duty cycles.If such data 
are requested you will be allowed a reasonable amount oftime to collect 
the data.
    (i) Participation in averaging, banking and trading. Enginesadapted 
for marine use under this section may not generate or useemission 
credits under this part 94. These engines may generatecredits under the 
ABT provisions in 40 CFR part 86, 89, 92, or 1039,as applicable. These 
engines must use emission credits under 40 CFRpart 86, 89, 92, or 1039 
as applicable if they are certified to an FELthat exceeds an applicable 
standard.

[[Page 674]]

    (j) Operator requirements. The requirements for vesselmanufacturers, 
owners, and operators in subpart K of this part applyto these engines 
whether they are certified under this part 94 oranother part as allowed 
by this section.

[70 FR 40459, July 13, 2005]



Sec. 94.908  National security exemption.

    (a)(1) Any marine engine, otherwise subject to this part, that 
isused in a vessel that exhibits substantial features 
ordinarilyassociated with military combat such as armor, permanently 
affixedweaponry, specialized electronic warfare systems, unique 
stealthperformance requirements, and/or unique combat 
maneuverabilityrequirements and which will be owned and/or used by an 
agency of thefederal government with the responsibility for national 
defense, willbe exempt from the regulations in this subpart for reasons 
of nationalsecurity. No request for this exemption is necessary.
    (2) Manufacturers may request a national security exemption forany 
marine engine, otherwise subject to this part, which does not meetthe 
conditions described in paragraph (a)(1) of this section. Amanufacturer 
requesting a national security exemption must state thepurpose for which 
the exemption is required and the request must beendorsed by an agency 
of the federal government charged withresponsibility for national 
defense.
    (b) EPA will maintain a list of models of marine engines (and 
thevessels which use them) that have been granted a national 
securityexemption under paragraph (a)(2) of this section. This list will 
beavailable to the public and may be obtained by writing to 
theDesignated Officer.
    (c) Manufacturers must add a legible label, written in blockletters 
in English, to each engine exempted under this section. Thelabel must be 
permanently secured to a readily visible part of theengine needed for 
normal operation and not normally requiringreplacement, such as the 
engine block. This label must include atleast the following items:
    (1) The label heading ``EMISSION CONTROLINFORMATION''.
    (2) Your corporate name and trademark.
    (3) Engine displacement, engine family identification 
(asapplicable), and model year of the engine or whom to contact 
forfurther information.
    (4) The statement ``THIS ENGINE HAS AN EXEMPTION FORNATIONAL 
SECURITY UNDER 40 CFR 94.908.''.

[64 FR 73331, Dec. 29, 1999, as amended at 69 FR 39213, June29, 2004]



Sec. 94.909  Export exemptions.

    (a) A new engine intended solely for export, and so labeled ortagged 
on the outside of any container and on the engine, is subjectto the 
provisions of Sec. 94.1103, unless the importingcountry has new marine 
engine emission standards which differ from EPAstandards.
    (b) For the purpose of paragraph (a) of this section, a 
countryhaving no standards whatsoever is deemed to be a country 
havingemission standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of 
exportunder paragraph (a) of this section, that such exemption is void 
abinitio with respect to a new engine intended solely for export, 
wheresuch engine is sold, or offered for sale, to an ultimate purchaser 
orotherwise distributed or introduced into commerce in the United 
Statesfor purposes other than export.



Sec. 94.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request 
madepursuant to Sec. 94.905 or Sec. 94.908, EPAdetermines it is 
appropriate to grant such an exemption, a memorandumof exemption is to 
be prepared and submitted to the person requestingthe exemption. The 
memorandum is to set forth the basis for theexemption, its scope, and 
such terms and conditions as are deemednecessary. Such terms and 
conditions generally include, but are notlimited to, agreements by the 
applicant to conduct the exempt activityin the manner described to EPA, 
create and maintain adequate recordsaccessible to EPA at reasonable 
times, employ labels for the exemptengines setting forth the nature of 
the exemption, take appropriatemeasures to assure that the terms of the 
exemption are met, and adviseEPA of the termination of the activity and 
the ultimate disposition ofthe engines.

[[Page 675]]

    (b) Any exemption granted pursuant to paragraph (a) of thissection 
is deemed to cover any subject engine only to the extent thatthe 
specified terms and conditions are complied with. A breach of anyterm or 
condition causes the exemption to be void ab initio withrespect to any 
engine. Consequently, the causing or the performing ofan act prohibited 
under Sec. 94.1103(a)(1) or (a)(3), otherthan in strict conformity with 
all terms and conditions of thisexemption, renders the person to whom 
the exemption is granted, andany other person to whom the provisions of 
Sec. 94.1103(a)are applicable, liable to suit under sections 204 and 
205 of the Act.



Sec. 94.911  Submission of exemption requests.

    Requests for exemption or further information concerningexemptions 
and/or the exemption request review procedure should beaddressed to the 
Designated Officer.



Sec. 94.912  Optional certification to land-based standards for auxiliarymarine engines.

    This section applies to auxiliary marine engines that areidentical 
to certified land-based engines. See Sec. 94.907for provisions that 
apply to propulsion marine engines or auxiliarymarine engines that are 
modified for marine applications.
    (a) General provisions. If you are an engine manufacturer,this 
section allows you to introduce new marine engines into commerceif they 
are already certified to the requirements that apply tocompression-
ignition engines under 40 CFR part 89 or 1039 for theappropriate model 
year. If you comply with all the provisions of thissection, we consider 
the certificate issued under 40 CFR part 86 or1039 for each engine to 
also be a valid certificate of conformityunder this part 94 for its 
model year, without a separate applicationfor certification under the 
requirements of this part 94.
    (b) Boat builder provisions. If you are not an enginemanufacturer, 
you may install an engine certified for land-basedapplications in a 
marine vessel as long as you meet all the qualifyingcriteria and 
requirements specified in paragraphs (d) and (e) of thissection. If you 
modify the non-marine engine, we will consider you amanufacturer of a 
new marine engine. Such engine modifications preventyou from using the 
provisions of this section.
    (c) Liability. Engines for which you meet the requirementsof this 
section are exempt from all the requirements and prohibitionsof this 
part, except for those specified in this section. Enginesexempted under 
this section must meet all the applicable requirementsfrom 40 CFR part 
89 or 1039. This paragraph (c) applies to enginemanufacturers, boat 
builders who use such an engine, and all otherpersons as if the engine 
were used in its originally intendedapplication. The prohibited acts of 
Sec. 94.1103(a)(1) applyto these new engines and vessels; however, we 
consider the certificateissued under 40 CFR part 89 or 1039 for each 
engine to also be a validcertificate of conformity under this part 94 
for its model year. If wemake a determination that these engines do not 
conform to theregulations during their useful life, we may require you 
to recallthem under this part 94 or under 40 CFR part 89 or 1068.
    (d) Qualifying criteria. If you are an engine manufacturerand meet 
all the following criteria and requirements regarding yournew marine 
engine, the engine is eligible for an exemption under thissection:
    (1) The marine engine must be identical in all material respectsto a 
land-based engine covered by a valid certificate of conformityfor the 
appropriate model year showing that it meets emissionstandards for 
engines of that power rating under 40 CFR part 89 or1039.
    (2) The engines may not be used as propulsion marine engines.
    (3) You must show that the number of auxiliary marine engines 
fromthe engine family must be smaller than the number of land-
basedengines from the engine family sold in the United States, as 
follows:
    (i) If you are the original manufacturer of the engine, base 
thisshowing on your sales information.
    (ii) In all other cases, you must get the original manufacturer 
ofthe engine to confirm this based on its sales information.

[[Page 676]]

    (e) Specific requirements. If you are an enginemanufacturer or boat 
builder using this exemption, you must do all ofthe following:
    (1) Make sure the original engine label will remain clearlyvisible 
after installation in the vessel. This label or a supplementallabel must 
identify that the original certification is valid formarine auxiliary 
applications.
    (2) Send a signed letter to the Designated Officer by the end ofeach 
calendar year (or less often if we tell you) with all thefollowing 
information:
    (i) Identify your full corporate name, address, and telephonenumber.
    (ii) List the engine models you expect to produce under 
thisexemption in the coming year.
    (iii) State: ``We produce each listed engine model formarine 
application without making any changes that could increase itscertified 
emission levels, as described in 40 CFR 94.907.''
    (3) If you are the certificate holder, you must describe in 
yourapplication for certification how you plan to produce engines for 
bothland-based and auxiliary marine applications, including 
projectedsales of auxiliary marine engines to the extent this can 
bedetermined. If the projected marine sales are substantial, we may 
askfor the year-end report of production volumes to include 
actualauxiliary marine engine sales.
    (f) Failure to comply. If your engines do not meet thecriteria 
listed in paragraph (d) of this section, they will be subjectto the 
standards, requirements, and prohibitions of this part 94 andthe 
certificate issued under 40 CFR part 89 or 1039 will not be deemedto 
also be a certificate issued under this part 94. Introducing 
theseengines into commerce without a valid exemption or certificate 
ofconformity under this part violates the prohibitions in 40 
CFR94.1103(a)(1).
    (g) Participation in averaging, banking and trading. Enginesusing 
this exemption may not generate or use emission credits underthis part 
94. These engines may generate credits under the ABTprovisions in 40 CFR 
part 89 or 1039, as applicable. These enginesmust use emission credits 
under 40 CFR part 89 or 1039 as applicableif they are certified to an 
FEL that exceeds an applicable standard.
    (h) Operator requirements. The requirements for vesselmanufacturers, 
owners, and operators in subpart K of this part applyto these engines 
whether they are certified under this part 94 oranother part as allowed 
by this section.

[70 FR 40460, July 13, 2005]



Sec. 94.913  Staged-assembly exemption.

    You may ask us to provide a temporary exemption to allow you 
tocomplete production of your engines at different facilities, as longas 
you maintain control of the engines until they are in theircertified 
configuration. We may require you to take specific steps toensure that 
such engines are in their certified configuration beforereaching the 
ultimate purchaser. You may request an exemption underthis section in 
your application for certification, or in a separatesubmission to the 
Designated Officer.

[70 FR 40461, July 13, 2005]



Sec. 94.914  Emergency vessel exemption.

    (a) Except as specified in paragraph (c) of this section, 
theprohibitions in Sec. 94.1103(a)(1) do not apply to a newengine that 
is subject to Tier 2 standards according to the followingprovisions:
    (1) The engine must be intended for installation in a lifeboat ora 
rescue boat as specified in 40 CFR 1042.625(a)(1)(i) or (ii).
    (2) This exemption is available from the initial effective datefor 
the Tier 2 standards until the engine model (or an engine ofcomparable 
size, weight, and performance) has been certified ascomplying with the 
Tier 2 standards and Coast Guard requirements. Forexample, this 
exemption would apply for new engine models that havenot yet been 
certified to the Tier 2 standards.
    (3) The engine must meet the Tier 1 emission standards specifiedin 
Sec. 94.8.
    (b) If you introduce an engine into U.S. commerce under thissection, 
you must meet the labeling requirements inSec. 94.212, but add the 
following statement instead of thecompliance statement in Sec. 
94.212(b)(6):


[[Page 677]]


THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSIONSTANDARDS 
UNDER 40 CFR 94.914 AND IS FOR USE SOLELY IN LIFEBOATS ORRESCUE BOATS 
(COAST GUARD APPROVAL SERIES 160.135 OR 160.156).INSTALLATION OR USE OF 
THIS ENGINE IN ANY OTHER APPLICATION MAY BE AVIOLATION OF FEDERAL LAW 
SUBJECT TO CIVIL PENALTY.

    (c) Introducing into commerce a vessel containing an engineexempted 
under this section violates the prohibitions inSec. 94.1103(a)(1) where 
the vessel is not a lifeboat orrescue boat, unless it is exempt under a 
different provision.Similarly, using such an engine or vessel as 
something other than alifeboat or rescue boat as specified in paragraph 
(a) of this sectionviolates the prohibitions in Sec. 94.1103(a)(1), 
unless itis exempt under a different provision.

[73 CFR 37197, June 30, 2008]

    Effective Date Note: At 73 FR 37197, June 30, 2008,Sec. 94.914 was 
added, effective July 7, 2008.



 Subpart K_Requirements Applicable to Vessel Manufacturers,Owners, and 
                                Operators

    Source: 68 FR 9787, Feb. 28, 2003, unless otherwisenoted.



Sec. 94.1001  Applicability.

    The requirements of this subpart are applicable to 
manufacturers,owners, and operators of marine vessels that contain 
Category 3engines subject to the provisions of subpart A of this part, 
except asotherwise specified.



Sec. 94.1002  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 94.1003  Production testing, in-use testing, and inspections.

    (a)-(b) [Reserved]
    (c) Manufacturers, owners and operators must allow emission testsand 
inspections to be conducted and must provide reasonable assistanceto 
perform such tests or inspections.



Sec. 94.1004  Maintenance, repair, adjustment, and recordkeeping.

    (a) Unless otherwise approved by the Administrator, all owners 
andoperators of Category 3 engines subject to the provisions of this 
partshall ensure that all emission-related maintenance is performed, 
asspecified in the maintenance instructions provided by the 
certifyingmanufacturer in compliance with Sec. 94.211.
    (b) Unless otherwise approved by the Administrator, allmaintenance, 
repair, adjustment, and alteration of Category 3 enginessubject to the 
provisions of this part performed by any owner,operator or other 
maintenance provider that is not covered byparagraph (a) of this section 
shall be performed, using goodengineering judgment, in such a manner 
that the engine continues(after the maintenance, repair, adjustment or 
alteration) to meet theemission standards it was certified as meeting 
prior to the need forservice. Adjustments are limited to the range 
specified by the enginemanufacturer in the approved application for 
certification.
    (c) A Category 3 engine may not be adjusted or altered contrary 
tothe requirements of Sec. 94.11 or paragraph (b) of thissection, 
except as allowed by Sec. 94.1103(b)(2). If such anadjustment or 
alteration occurs, the engine must be returned to aconfiguration allowed 
by this part within two hours of operation. Eachtwo-hour period during 
which there is noncompliance is a separateviolation. The following 
provisions apply to adjustments oralterations made under Sec. 
94.1103(b)(2):
    (1) In the case of an engine that is adjusted or altered underSec. 
94.1103(b)(2)(i), there is no violation under thisparagraph (c) for 
engine operation before completion of the repair orreplacement 
procedure. The provisions of paragraph (c) introductorytext apply to all 
operation following completion of the repair orreplacement procedure.
    (2) In the case of an engine that is adjusted or altered underSec. 
94.1103(b)(2)(ii), there is no violation under thisparagraph (c) if the 
engine operates for less than two hours followingthe conclusion of the 
emergency that prompted the adjustment oralteration before the emission-
control system is restored to

[[Page 678]]

proper functioning. The provisions of paragraph (c) introductorytext 
apply to all operation that occurs after this two-hour period.
    (d) The owner and operator of the engine shall maintain on boardthe 
vessel records of all maintenance, repair, and adjustment thatcould 
reasonably affect the emission performance of any Category 3engine 
subject to the provision of this part. Owners and operatorsshall also 
maintain, on board the vessel, records regardingcertification, parameter 
adjustment, and fuels used. For engines thatare automatically adjusted 
electronically, all adjustments must belogged automatically. Owners and 
operators shall make these recordsavailable to EPA upon request. These 
records must include thefollowing:
    (1) [Reserved]
    (2) The Technical File, Record Book of Engine Parameters, andbunker 
delivery notes that are required by the Annex VI Technical 
Code(incorporated by reference in Sec. 94.5).
    (3) Specific descriptions of engine maintenance, repair,adjustment, 
and alteration (including rebuilding). The descriptionsmust include at 
least the date, time, and nature of the maintenance,repair, adjustment, 
or alteration and the position of the vessel whenthe maintenance, 
repair, adjustment, or alteration was made.
    (4) Emission-related maintenance instructions provided by 
themanufacturer.
    (e) For each marine vessel containing a Category 3 engine, theowner 
shall annually review the vessel's records and submit to EPA asigned 
statement certifying compliance during the preceding year withthe 
requirements of this part that are applicable to owners andoperators of 
such vessels. Alternately, if review of the vessel'srecords indicates 
that there has been one or more violations of therequirements of this 
part, the owner shall submit to EPA a signedstatement specifying the 
noncompliance, including the nature of thenoncompliance, the time of the 
noncompliance, and any efforts made toremedy the noncompliance. The 
statement of compliance (ornoncompliance) required by this paragraph 
shall be signed by theexecutive with responsibility for marine 
activities of the owner. Ifthe vessel is operated by a different 
business entity than the vesselowner, the reporting requirements of this 
paragraph (e) apply to boththe owner and the operator. Compliance with 
these review andcertification requirements by either the vessel owner or 
the vesseloperator with respect to a compliance statement will be 
consideredcompliance with these requirements by both of these parties 
for thatcompliance statement. The executive(s) may authorize a captain 
orother primary operator to conduct this review and submit 
thecertification, provided that the certification statement 
isaccompanied by written authorization for that individual to submitsuch 
statements. The Administrator may waive the requirements of 
thisparagraph when equivalent assurance of compliance is 
otherwiseavailable.

[64 FR 73331, Dec. 29, 1999, as amended at 70 FR 40461, July13, 2005]



       Subpart L_General Enforcement Provisions and ProhibitedActs



Sec. 94.1101  Applicability.

    The requirements of this subpart are applicable to all personswith 
respect to engines subject to the provisions of Subpart A of thispart.



Sec. 94.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 94.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i)(A) In the case of a manufacturer of new engines, the sale,the 
offering for sale, the introduction into commerce, the deliveryfor 
introduction into commerce, or the distribution in commerce of anynew 
engine that is subject to the standards of this part, unless suchengine 
is covered by a certificate of conformity issued (and ineffect) under 
regulations found in this part.
    (B) The manufacture of an engine for the purpose of an act listedin 
paragraph (a)(1)(i)(A) of this section unless such engine iscovered by a 
certificate of conformity issued (and in effect)

[[Page 679]]

under regulations found in this part prior to its introductioninto 
commerce.
    (ii) In the case of any person, except as provided in Subpart I 
ofthis part, the importation into the United States of any 
enginemanufactured on or after the implementation date of the 
applicableemission limits for the relevant engine, unless such engine is 
coveredby a certificate of conformity issued (and in effect) 
underregulations found in this part.
    (2)(i) For a person to fail or refuse to permit access to orcopying 
of records or to fail to make reports or provide informationrequired 
under this part.
    (ii) For a person to fail or refuse to permit entry, testing, 
orinspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to 
havetests performed as required by this part.
    (iv) For a person to fail to establish or maintain records 
asrequired under this part.
    (v) For an owner or operator of a vessel using a Category 3 engineto 
refuse to allow the in-use testing described inSec. 94.1003 to be 
performed.
    (vi) For a manufacturer, owner or operator of a Category 3 engineto 
fail to provide maintenance instructions as required bySec. 94.211.
    (3)(i) For a person to remove or render inoperative a device 
orelement of design installed on or in an engine in compliance 
withregulations under this part, or to set any adjustable parameter to 
asetting outside of the range specified by the manufacturer, asapproved 
in the application for certification by the Administrator(except as 
allowed by Sec. Sec. 94.1003 and 94.1004).
    (ii) For a person to manufacture, sell or offer to sell, orinstall, 
a part or component intended for use with, or as part of, anengine, 
where a principal effect of the part or component is tobypass, defeat, 
or render inoperative a device or element of designinstalled on or in an 
engine in compliance with regulations issuedunder this part, and where 
the person knows or should know that thepart or component is being 
offered for sale or installed for this useor put to such use.
    (iii) for a person to deviate from the provisions ofSec. 94.11 when 
rebuilding an engine (or rebuilding aportion of an engine or engine 
system).
    (4) For a manufacturer of a new engine subject to 
standardsprescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver forintroduction 
into commerce, a new engine unless the manufacturer hascomplied with the 
requirements of Sec. 94.1107.
    (ii) To sell, offer for sale, or introduce or deliver 
forintroduction into commerce, a new engine unless all required 
labelsand tags are affixed to the engine in accordance withSec. 94.212.
    (iii) To fail or refuse to comply with the requirements ofSec. 
94.1108.
    (iv) Except as provided in Sec. 94.211, to providedirectly or 
indirectly in any communication to the ultimate purchaseror a subsequent 
purchaser that the coverage of a warranty under theAct is conditioned 
upon use of a part, component, or systemmanufactured by the manufacturer 
or a person acting for themanufacturer or under its control, or 
conditioned upon serviceperformed by such persons.
    (v) To fail or refuse to comply with the terms and conditions ofthe 
warranty under Sec. 94.1107.
    (5) For a manufacturer of marine vessels to distribute incommerce, 
sell, offer for sale, or deliver for introduction intocommerce a new 
vessel containing an engine not covered by acertificate of conformity 
applicable for an engine model year the sameas or later than the 
calendar year in which the manufacture of the newvessel is initiated. 
This prohibition covers improper installation ina manner such that the 
installed engine would not be covered by theengine manufacturer's 
certificate. Improper installation wouldinclude, but is not limited to, 
failure to follow the enginemanufacturer's instructions related to 
engine cooling, exhaustaftertreatment, emission sampling ports, or any 
other emission-relatedcomponent, parameter, or setting. In general, you 
may use up yournormal inventory of engines not certified to new emission 
standards ifthey were built before the date of the new standards. 
However, weconsider stockpiling of these engines to be a violation of 
paragraph(a)(1)(i)(A) of this section.

[[Page 680]]

(Note: For the purpose of thisparagraph (a)(5), the manufacture of a 
vessel is initiated when thekeel is laid, or the vessel is at a similar 
stage of construction.)
    (6) For any person to install a recreational marine engine in 
avessel that is manufactured on or after the implementation date of 
theapplicable standards and that is not a recreational vessel.
    (7)(i) For an owner or operator of a vessel using a Category 3engine 
to fail or refuse to ensure that an engine is properly adjustedas set 
forth in Sec. 94.1004.
    (ii) For an owner or operator of a vessel using a Category 3 tofail 
to maintain or repair an engine as set forth inSec. 94.1004.
    (iii) For an owner or operator of a vessel using a Category 3engine 
to operate an engine in violation of the requirements ofSec. 
94.1004(c).
    (iv) For an owner or operator of a vessel using a Category 3engine 
to fail to comply with any applicable provision in this partfor 
recordkeeping, reporting, or submission of information to EPA,including 
the annual certification requirements ofSec. 94.1004.
    (8) For an owner or operator of a vessel installing a 
replacementengine under the provisions of paragraph (b)(4) of this 
section tomake modifications to significantly increase the value of the 
vesselwithin six months after installing the replacement engine.
    (b) For the purposes of enforcement of this part, the 
followingapply:
    (1) Nothing in paragraph (a)(3) of this section is to be construedto 
require the use of any manufacturer's parts in maintaining orrepairing 
an engine.
    (2)(i) Actions for the purpose of repair or replacement of adevice 
or element of design or any other item are not consideredprohibited acts 
under paragraph (a)(3)(i) of this section if theaction is a necessary 
and temporary procedure, the device or elementis replaced upon 
completion of the procedure, and the action resultsin the proper 
functioning of the device or element of design.
    (ii) Actions for emergency purposes are not considered 
prohibitedacts under paragraph (a)(3)(i) of this section if the action 
is anecessary and temporary procedure and the device or element 
isreplaced such that the proper functioning of the device or element 
ofdesign is restored as soon as possible.
    (3) Where the Administrator determines that no engine that 
iscertified to the requirements of this part is produced by 
anymanufacturer with the appropriate physical or 
performancecharacteristics to repower a vessel, the Administrator may 
allow anengine manufacturer to introduce into commerce a replacement 
enginewithout complying with all of the otherwise applicable 
requirements ofthis part. Such engine shall not be subject to the 
prohibitions ofparagraph (a)(1) of this section, subject to all the 
followingprovisions:
    (i) The engine requiring replacement is not certified or iscertified 
to emission standards that are less stringent than those ineffect when 
the replacement engine is built.
    (ii) The engine manufacturer or its agent takes ownership 
andpossession of the engine being replaced or confirms that the 
enginehas been destroyed.
    (iii) If the engine being replaced was not certified to anyemission 
standards under this part, the replacement engine must have apermanent 
label with your corporate name and trademark and thefollowing language, 
or similar alternate language approved by theAdministrator:

    THIS ENGINE DOES NOT COMPLY WITH U.S. EPA MARINE 
EMISSIONREQUIREMENTS. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE 
OTHERTHAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, 
[Insertappropriate year reflecting when the earliest tier of standards 
beganto apply to engines of that size and type] MAY BE A VIOLATION 
OFFEDERAL LAW SUBJECT TO CIVIL PENALTY.

    (iv) If the engine being replaced was certified to emissionstandards 
less stringent than those in effect when you produce thereplacement 
engine, the replacement engine must have a permanent labelwith your 
corporate name and trademark and the following language, orsimilar 
alternate language approved by the Administrator:

    THIS ENGINE COMPLIES WITH U.S. EPA MARINE EMISSION REQUIREMENTSFOR

[[Page 681]]

[Insert appropriate year reflecting when the Tier 1 or Tier 2standards 
for the replaced engine began to apply] ENGINES UNDER 40 
CFR94.1103(b)(3). SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE 
OTHERTHAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, 
[Insertappropriate year reflecting when the next tier of emission 
standardsbegan to apply] MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVILPENALTY.

    (v) Where the replacement engine is intended to replace an 
enginethat is certified to emission standards that are less stringent 
thanthose in effect when the replacement engine is built, the 
replacementengine shall be identical in all material respects to a 
certifiedconfiguration of the same or later model year as the engine 
beingreplaced.
    (vi) Engines sold pursuant to the provisions of this paragraphwill 
neither generate nor use emission credits and will not be part ofany 
accounting under the averaging, banking and trading program.
    (vii) In cases where an engine is to be imported for 
replacementpurposes under the provisions of this paragraph (b)(3) of 
thissection, the term ``engine manufacturer'' shall not applyto an 
individual or other entity that does not possess a currentCertificate of 
Conformity issued by EPA under this part; and
    (viii) The provisions of this section may not be used tocircumvent 
emission standards that apply to new engines under thispart.
    (4) An engine manufacturer may make the determination related 
toreplacement engines described in paragraph (b)(3) of this 
sectioninstead of the Administrator, if the new engine is needed to 
replacean engine that has experienced catastrophic failure. The 
enginemanufacturer must consider whether certified engines are 
availablefrom its own product lineup or that of the manufacturer of the 
enginebeing replaced (if different). The engine manufacturer must 
keeprecords explaining why a certified engine was not available and 
makethese records available upon request.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68347, Nov.8, 2002; 68 
FR 9788, Feb. 28, 2003; 70 FR 40461, July 13, 2005]



Sec. 94.1104  General enforcement provisions.

    (a) Information collection provisions. (1)(i) Everymanufacturer of 
new engines and other persons subject to therequirements of this part 
must establish and maintain records, performtests, make reports and 
provide information the Administrator mayreasonably require to determine 
whether the manufacturer or otherperson has acted or is acting in 
compliance with this part or tootherwise carry out the provisions of 
this part, and must, uponrequest of an officer or employee duly 
designated by theAdministrator, permit the officer or employee at 
reasonable times tohave access to and copy such records. The 
manufacturer shall comply inall respects with the requirements of 
subpart E of this part.
    (ii) Every manufacturer or owner of engines exempted from 
thestandards or requirements of this part must establish and 
maintainrecords, perform tests, make reports and provide information 
theAdministrator may reasonably require regarding the emissions of 
suchengines.
    (2) For purposes of enforcement of this part, an officer oremployee 
duly designated by the Administrator, upon presentingappropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of 
themanufacturer, or of any person whom the manufacturer engaged 
toperform any activity required under paragraph (a)(1) of this 
section,for the purposes of inspecting or observing any activity 
conductedpursuant to paragraph (a)(1) of this section; and
    (ii) To inspect records, files, papers, processes, controls, 
andfacilities used in performing an activity required by paragraph 
(a)(1)of this section, by the manufacturer or by a person whom 
themanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a newengine 
from Sec. 94.1103 upon such terms and conditions asthe Administrator 
may find necessary for the purpose of export,research, investigations, 
studies, demonstrations, or training, or forreasons of national 
security, or for other purposes allowed by subpartJ of this part.

[[Page 682]]

    (c) Importation provision. (1) A new engine, offeredfor importation 
or imported by a person in violation ofSec. 94.1103 is to be refused 
admission into the UnitedStates, but the Secretary of the Treasury and 
the Administrator may,by joint regulation, provide for deferring a final 
determination as toadmission and authorizing the delivery of such an 
engine offered forimport to the owner or consignee thereof upon such 
terms andconditions (including the furnishing of a bond) as may appear 
to themappropriate to insure that the engine will be brought into 
conformitywith the standards, requirements, and limitations applicable 
to itunder this part.
    (2) If an engine is finally refused admission under this 
paragraph(c), the Secretary of the Treasury shall cause disposition 
thereof inaccordance with the customs laws unless it is exported, 
underregulations prescribed by the Secretary, within 90 days of the date 
ofnotice of the refusal or additional time as may be permitted 
pursuantto the Treasury regulations.
    (3) Disposition in accordance with the customs laws may not bemade 
in such manner as may result, directly or indirectly, in thesale, to the 
ultimate consumer, of a new engine that fails to complywith applicable 
standards of the Administrator under this part.
    (d) Export provision. A new engine intended solely forexport, and so 
labeled or tagged on the outside of the container ifused and on the 
engine, shall be subject to the provisions ofSec. 94.1103, except that 
if the country that is to receivethe engine has emission standards that 
differ from the standardsprescribed under subpart A of this part, then 
the engine must complywith the standards of the country that is to 
receive the engine.
    (e) Recordkeeping. Except where specified otherwise, recordsrequired 
by this part must be kept for eight (8) years.



Sec. 94.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction 
torestrain violations of Sec. 94.1103(a).
    (b) Actions to restrain violations of Sec. 94.1103(a)must be 
brought by and in the name of the United States. In an action,subpoenas 
for witnesses who are required to attend a district court inany district 
may run into any other district.



Sec. 94.1106  Penalties.

    This section specifies actions that are prohibited and the 
maximumcivil penalties that we can assess for each violation. The 
maximumpenalty values listed in paragraphs (a) and (c) of this section 
areshown for calendar year 2004. As described in paragraph (d) of 
thissection, maximum penalty limits for later years are set forth in 
40CFR part 19.
    (a) Violations. A violation of the requirements of thissubpart is a 
violation of the applicable provisions of the Act,including sections 
213(d) and 203, and is subject to the penaltyprovisions thereunder.
    (1) A person who violates Sec. 94.1103(a)(1), (a)(4),(a)(5), 
(a)(6), or (a)(7)(iv) or a manufacturer or dealer who violatesSec. 
94.1103(a)(3)(i) or (iii) or Sec. 94.1103(a)(7) is subject to a civil 
penalty of not more than $32,500 for eachviolation.
    (2) A person other than a manufacturer or dealer who violatesSec. 
94.1103(a)(3)(i) or (iii) or Sec. 94.1103(a)(7)(i), (ii), or (iii) or 
any person who violatesSec. 94.1103(a)(3)(ii) is subject to a civil 
penalty of notmore than $2,750 for each violation.
    (3) A violation with respect to Sec. 94.1103(a)(1), (a)(3)(i), 
(a)(3)(iii), (a)(4), or (a)(5), (a)(7) constitutes a separateoffense 
with respect to each engine.
    (4) A violation with respect to Sec. 94.1103(a)(3)(ii)constitutes a 
separate offense with respect to each part or component.Each day of a 
violation with respect to Sec. 94.1103(a)(5)or (a)(7)(iv) constitutes a 
separate offense.
    (5) Each two hour period of a violation with respect toSec. 
94.1103(a)(7)(iii) constitutes a separate offense. Aviolation of Sec. 
94.1103(a)(7)(iii) lasting less than twohours constitutes a single 
offense.
    (b) Civil actions. The Administrator may commence a civilaction to 
assess and recover any civil penalty under paragraph (a) ofthis section.
    (1) An action under this paragraph (b) may be brought in thedistrict 
court of the United States for the district in

[[Page 683]]

which thedefendant resides or has the Administrator's principal place 
ofbusiness, and the court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessedunder 
this paragraph (b), the court is to take into account thegravity of the 
violation, the economic benefit or savings (if any)resulting from the 
violation, the size of the violator's business, theviolator's history of 
compliance with Title II of the Act, actiontaken to remedy the 
violation, the effect of the penalty on theviolator's ability to 
continue in business, and such other matters asjustice may require.
    (3) In any such action, subpoenas for witnesses who are requiredto 
attend a district court in any district may run into any otherdistrict.
    (c) Administrative assessment of certain penalties. 
(1)Administrative penalty authority. Subject to 42 U.S.C. 7524(c), 
inlieu of commencing a civil action under paragraph (b) of this 
section,the Administrator may assess any civil penalty prescribed in 
paragraph(a) of this section, except that the maximum amount of penalty 
soughtagainst each violator in a penalty assessment proceeding shall 
notexceed $270,000, unless the Administrator and the Attorney 
Generaljointly determine that a matter involving a larger penalty amount 
isappropriate for administrative penalty assessment. Any 
suchdetermination by the Administrator and the Attorney General is 
notsubject to judicial review. Assessment of a civil penalty shall be 
byan order made on the record after opportunity for a hearing held 
inaccordance with the procedures found at part 22 of this chapter. 
TheAdministrator may compromise, or remit, with or without 
conditions,any administrative penalty which may be imposed under this 
section.
    (2) Determining amount. In determining the amount of anycivil 
penalty assessed under this paragraph (c), the Administratorshall take 
into account the gravity of the violation, the economicbenefit or 
savings (if any) resulting from the violation, the size ofthe violator's 
business, the violator's history of compliance withTitle II of the Act, 
action taken to remedy the violation, the effectof the penalty on the 
violator's ability to continue in business, andsuch other matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by theAdministrator 
under this paragraph (c) does not affect or limit theAdministrator's 
authority to enforce any provisions of the Act; exceptthat any violation 
with respect to which the Administrator hascommenced and is diligently 
prosecuting an action under this paragraph(c), or for which the 
Administrator has issued a final order notsubject to further judicial 
review and for which the violator has paida penalty assessment under 
this paragraph shall not be the subject ofa civil penalty action under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) 
shallaffect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this paragraph(c) is to 
become final 30 days after its issuance unless a petitionfor judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penaltyis 
assessed in accordance with this paragraph (c) may seek review ofthe 
assessment in the United States District Court for the District 
ofColumbia or for the district in which the violation is alleged to 
haveoccurred, in which such person resides, or where the 
person'sprincipal place of business is located, within the 30-day 
periodbeginning on the date a civil penalty order is issued. The 
personshall simultaneously send a copy of the filing by certified mail 
tothe Administrator and the Attorney General. The Administrator 
shallfile in the court within 30 days a certified copy, or certified 
index,as appropriate, of the record on which the order was issued. The 
courtis not to set aside or remand any order issued in accordance with 
therequirements of this paragraph (c) unless substantial evidence 
doesnot exist in the record, taken as a whole, to support the finding of 
aviolation or unless the Administrator's assessment of the 
penaltyconstitutes an abuse of discretion, and the court is not to 
imposeadditional civil penalties unless the Administrator's assessment 
ofthe penalty constitutes an abuse of

[[Page 684]]

discretion. In anyproceedings, the United States may seek to recover 
civil penaltiesassessed under this section.
    (6) Collection. (i) If any person fails to pay an assessmentof a 
civil penalty imposed by the Administrator as provided in thispart after 
the order making the assessment has become final or after acourt in an 
action brought under paragraph (c)(5) of this section hasentered a final 
judgment in favor of the Administrator, theAdministrator shall request 
that the Attorney General bring a civilaction in an appropriate district 
court to recover the amount assessed(plus interest at rates established 
pursuant to section 6621(a)(2) ofthe Internal Revenue Code of 1986 (26 
U.S.C. 6621(a)(2)) from the dateof the final order or the date of final 
judgment, as the case may be).In such an action, the validity, amount, 
and appropriateness of thepenalty is not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of 
anassessment of a civil penalty as described in paragraph (c)(6)(i) 
ofthis section shall be required to pay, in addition to that amount 
andinterest, the United States' enforcement expenses, 
includingattorney's fees and costs for collection proceedings, and a 
quarterlynonpayment penalty for each quarter during which the failure to 
paypersists. The nonpayment penalty is an amount equal to ten percent 
ofthe aggregate amount of that person's penalties and 
nonpaymentpenalties which are unpaid as of the beginning of such 
quarter.
    (d) The maximum penalty values listed in paragraphs (a) and (c) 
ofthis section are shown for calendar year 2004. Maximum penalty 
limitsfor later years may be adjusted based on the Consumer Price Index. 
Thespecific regulatory provisions for changing the maximum 
penalties,published in 40 CFR part 19, reference the applicable U.S. 
Codecitation on which the prohibited action is based.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9789, Feb.28, 2003; 70 
FR 40462, July 13, 2005]



Sec. 94.1107  Warranty provisions.

    (a) The manufacturer of each engine must warrant to the 
ultimatepurchaser and each subsequent purchaser or owner that the engine 
isdesigned, built, and equipped so as to conform at the time of salewith 
applicable regulations under section 213 of the Act, and is freefrom 
defects in materials and workmanship which cause such engine tofail to 
conform with applicable regulations for its warranty period(as 
determined under Sec. 94.10).
    (b) For the purposes of this section, the owner of any 
enginewarranted under this part is responsible for the proper 
maintenance ofthe engine. Proper maintenance includes replacement and/or 
service, asneeded, at the owner's expense at a service establishment or 
facilityof the owner's choosing, of all parts, items, or devices which 
were ingeneral use with engines prior to 1999. For diesel engines, this 
wouldgenerally include replacement or cleaning of the fuel delivery 
andinjection system.



Sec. 94.1108  In-use compliance provisions.

    (a) Effective with respect to engines subject to the requirementsof 
this part:
    (1) If the Administrator determines that a substantial number ofany 
class or category of engines, although properly maintained andused, do 
not conform to the regulations prescribed under section 213of the Act 
when in actual use throughout their useful life period (asdefined under 
Sec. 94.2), the Administrator shallimmediately notify the manufacturer 
of such nonconformity and requirethe manufacturer to submit a plan for 
remedying the nonconformity ofthe engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformityof 
any such engines which are properly used and maintained will beremedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination 
ofnonconformity and so advises the Administrator, the Administratorshall 
afford the manufacturer and other interested persons anopportunity to 
present their views and evidence in support thereof ata public hearing. 
Unless, as a result of such hearing, theAdministrator

[[Page 685]]

withdraws such determination of nonconformity, theAdministrator shall, 
within 60 days after the completion of suchhearing, order the 
manufacturer to provide prompt notification of suchnonconformity in 
accordance with paragraph (a)(2) of this section.
    (2) Any notification required to be given by the manufacturerunder 
paragraph (a)(1) of this section with respect to any class orcategory of 
engines shall be given to ultimate purchasers, subsequentpurchasers (if 
known), and dealers (as applicable) in such manner andcontaining such 
information as required in Subparts E and H of thispart.
    (3)(i) The certifying manufacturer shall furnish with each newengine 
written instructions for the proper maintenance and use of theengine by 
the ultimate purchaser as required underSec. 94.211.
    (ii) The instruction under paragraph (a)(3)(i) of this sectionmust 
not include any condition on the ultimate purchaser's using, 
inconnection with such engine, any component or service (other than 
acomponent or service provided without charge under the terms of 
thepurchase agreement) which is identified by brand, trade, or 
corporatename. Such instructions also must not directly or 
indirectlydistinguish between service performed by the franchised 
dealers ofsuch manufacturer, or any other service establishments with 
which suchmanufacturer has a commercial relationship, and service 
performed byindependent engine repair facilities with which such 
manufacturer hasno commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section maybe 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the enginewill 
function properly only if the component or service so identifiedis used 
in connection with such engine; and
    (B) The Administrator finds that such a waiver is in the 
publicinterest.
    (iv) In addition, the manufacturer shall indicate by means of alabel 
or tag permanently affixed to the engine that the engine iscovered by a 
certificate of conformity issued for the purpose ofassuring achievement 
of emission standards prescribed under section213 of the Act. This label 
or tag shall also contain informationrelating to control of emissions as 
prescribed underSec. 94.212.
    (b) The manufacturer bears all cost obligation any dealer incursas a 
result of a requirement imposed by paragraph (a) of this section.The 
transfer of any such cost obligation from a manufacturer to adealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a 
statementrespecting the cost or value of emission control devices or 
systems,the manufacturer shall set forth in the statement the cost or 
valueattributed to these devices or systems by the Secretary of 
Labor(through the Bureau of Labor Statistics). The Secretary of Labor, 
andhis or her representatives, has the same access for this purpose 
tothe books, documents, papers, and records of a manufacturer as 
theComptroller General has to those of a recipient of assistance 
forpurposes of section 311 of the Act.



   Sec. Appendix I to Part 94--Emission-Related Engine Parameters and 
                             Specifications

I. Basic Engine Parameters--Reciprocating Engines.
    1. Compression ratio.
    2. Type of air aspiration (natural, Roots blown, 
supercharged,turbocharged).
    3. Valves (intake and exhaust).
    a. Head diameter dimension.
    b. Valve lifter or actuator type and valve lash dimension.
    4. Camshaft timing.
    a. Valve opening--intake exhaust (degrees from TDC or BDC).
    b. Valve closing--intake exhaust (degrees from TDC or BDC).
    c. Valve overlap (degrees).
    5. Ports--two stroke engines (intake and/or exhaust).
    a. Flow area.
    b. Opening timing (degrees from TDC or BDC).
    c. Closing timing (degrees from TDC or BDC).
II. Intake Air System.
    1. Roots blower/supercharger/turbocharger calibration.
    2. Charge air cooling.
    a. Type (air-to-air; air-to-liquid).
    b. Type of liquid cooling (engine coolant, dedicated coolingsystem).
    c. Performance (charge air delivery temperature ([deg]F) at 
ratedpower and one

[[Page 686]]

other power level under ambient conditions of80[deg]F and 110[deg]F, and 
3 minutes and 15 minutes after selectingrated power, and 3 minutes and 5 
minutes after selecting other powerlevel).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
    a. Engine idle speed.
    2. Fuel injection--compression ignition engines.
    a. Control parameters and calibrations.
    b. Transient enrichment system calibration.
    c. Air-fuel flow calibration.
    d. Altitude compensation system calibration.
    e. Operating pressure(s).
    f. Injector timing calibration.
IV. Engine Cooling System.
    1. Thermostat calibration.
V. Exhaust System.
    1. Maximum allowable back pressure.
VI. Exhaust Emission Control System.
    1. Air injection system.
    a. Control parameters and calibrations.
    b. Pump flow rate.
    2. EGR system.
    a. Control parameters and calibrations.
    b. EGR valve flow calibration.
    3. Catalytic converter system.
    a. Active surface area.
    b. Volume of catalyst.
    c. Conversion efficiency.
    4. Backpressure.
VII. Crankcase Emission Control System.
    1. Control parameters and calibrations.
    2. Valve calibrations.
VIII. Auxiliary Emission Control Devices (AECD).
    1. Control parameters and calibrations.
    2. Component calibration(s).



PART 95_MANDATORY PATENT LICENSES--Table of Contents




Sec.
95.1 Definitions.
95.2 Petition for mandatory license.
95.3 Findings prior to application to Attorney General.
95.4 Limitations on mandatory licenses.

    Authority: 42 U.S.C. 7609; Sec. 104, Pub. L.103-182, 107 Stat. 2057, 
2064.

    Source: 59 FR 67638, Dec. 30, 1994, unless otherwisenoted.



Sec. 95.1  Definitions.

    (a) As used in this part, all terms not defined in this sectionshall 
have the meaning given them by the Act.
    (b) Act means the Clean Air Act, as amended (42 U.S.C.Sec. Sec. 
7401-7671).
    (c) Agency means the Environmental Protection Agency.
    (d) Administrator means the Administrator of theEnvironmental 
Protection Agency.



Sec. 95.2  Petition for mandatory license.

    (a) Any party required to comply with sections 111, 112 or 202 ofthe 
Act (42 U.S.C. 7411, 7412 or 7521) may petition to theAdministrator for 
a mandatory patent license pursuant to section 308of the Act (42 U.S.C. 
7608), under a patent that the petitionermaintains is necessary to 
enable the petitioner to comply withSections 111, 112 or 202 of the Act.
    (b)(1) Each petition shall be signed by the petitioner and 
shallstate the petitioner's name and address. If the petitioner is 
acorporation, the petition shall be signed by an authorized officer 
ofthe corporation, and the petition shall indicate the state 
ofincorporation. Where the petitioner elects to be represented 
bycounsel, a signed notice to that effect shall be included with 
thepetition at the time of filing.
    (2) Each petition shall include a copy of the patent under which 
amandatory patent license is sought. The petition shall identify 
allcurrent owners of the patent and shall include a copy of 
allassignment documents relevant to the patent that are available 
fromthe United States Patent and Trademark Office.
    (3) Each petition must identify any person whose interest 
thepetitioner believes may be affected by the grant of the license 
towhich the petition is directed.
    (4) Each petition must contain a concise statement of all of 
theessential facts upon which it is based. No particular form 
ofstatement is required. Each petition shall be verified by 
thepetitioner or by the person having the best knowledge of such 
facts.In the case of facts stated on information and belief, the source 
ofsuch information and grounds of belief shall be given. The statementof 
facts shall include the following:
    (i) An identification of the provisions of the Act and/orregulations 
thereunder that the petitioner maintains petitioner willbe able to 
comply with if

[[Page 687]]

the petitioner is granted the patentlicense that is the subject of the 
petition;
    (ii) An identification of the nature and purpose of thepetitioner's 
intended use of the patent license;
    (iii) An explanation of the relationship between the 
patentedtechnology and the activities to which petitioner proposes to 
applythe patented technology, including an estimate of the effect on 
suchactivities stemming from the grant or denial of the patent license;
    (iv) A summary of facts demonstrating that the patent under whicha 
mandatory patent license is sought is being used or is intended 
forpublic or commercial use;
    (v) An explanation of why a mandatory patent license is necessaryfor 
the petitioner to comply with the requirements of sections 111,112 or 
202 of the Act, and why the patented technology is nototherwise 
available;
    (vi) An explanation of why there are no other reasonablealternatives 
for accomplishing compliance with sections 111, 112 or202 of the Act;
    (vii) An explanation of why the unavailability of a mandatorypatent 
license may result in a substantial lessening of competition ora 
tendency to create a monopoly in any line of commerce in any sectionof 
the United States;
    (viii) A summary of efforts made by the petitioner to obtain apatent 
license from the owner of the patent, including the terms andconditions 
of any patent license proposed by petitioner to the patentowner; and
    (ix) The terms, if any, on which the owner of the patent hasproposed 
to grant the petitioner a patent license.
    (5) Each petition shall include a proposed patent license thatstates 
all of the terms and conditions that the petitioner proposesfor the 
patent license.
    (6) Petitions shall be addressed to the Assistant Administratorfor 
Air and Radiation, Mail Code 6101, U.S. Environmental ProtectionAgency, 
Washington, DC 20460.
    (c) Petitions that do not include all of the information requiredin 
paragraph (b) of this section shall be returned to the petitioner.The 
petitioner may supplement the petition and resubmit the petition.
    (d) If the Administrator, or the Administrator's designee, findsthat 
the criteria in Sec. 95.3 are not met, or otherwisedecides to deny the 
petition, a denial of the petition shall be sentto the petitioner, along 
with an explanation of the reasons for thedenial.
    (e) If the Administrator, or the Administrator's designee, findsthat 
the criteria in Sec. 95.3 are met and decides to applyto the Attorney 
General for a patent license under section 308 of theAct, notice of such 
application shall be given to the petitioner,along with a copy of the 
application sent to the Attorney General.



Sec. 95.3  Findings prior to application to Attorney General.

    The Administrator, or the Administrator's designee, may apply tothe 
Attorney General for a mandatory patent license pursuant tosection 308 
of the Act (42 U.S.C. 7608) either in response to apetition under Sec. 
95.2 or on the Administrator's ordesignee's own initiative, only after 
expressly finding that each oneof the following mandatory criteria is 
met:
    (a) The application is for a patent license covering no more thanone 
patent;
    (b) The party to whom the proposed patent license is to be 
grantedhas presented the Administrator or designee with evidence that 
suchparty has made reasonable efforts to obtain a patent license from 
thepatent owner with terms similar to the license terms to be proposed 
inthe application to the Attorney General;
    (c) The patent under which a patent license is sought in 
theapplication to the Attorney General is being used or is intended 
forpublic or commercial use;
    (d) The mandatory patent license is necessary for a party tocomply 
with the requirements of sections 111, 112 or 202 of the Act(42 U.S.C. 
7411, 7412 or 7521);
    (e) The patented technology is not otherwise reasonably 
available,and there are no other reasonable alternatives for 
accomplishingcompliance with sections 111, 112 or 202 of the Act (42 
U.S.C. 7411,7412 or 7521); and

[[Page 688]]

    (f) The unavailability of a mandatory patent license mayresult in a 
substantial lessening of competition or a tendency tocreate a monopoly 
in any line of commerce in any section of the UnitedStates.



Sec. 95.4  Limitations on mandatory licenses

    (a) If the Administrator, or the Administrator's designee, decidesto 
apply to the Attorney General for a mandatory patent license 
inaccordance with Sec. 95.3, the application shall include aproposed 
patent license with the following limitations:
    (1) The scope and duration of the patent license shall be limitedto 
that necessary to permit the proposed licensee to comply with 
therequirements the Act;
    (2) The patent license shall be nonexclusive;
    (3) The patent license shall be non-assignable, except with thatpart 
of the enterprise or goodwill that enjoys the license;
    (4) The patent license shall be for use of the licensed technologyin 
the United States only;
    (5) The patent license shall extend only to those uses necessaryto 
enable the licensee to comply with sections 111, 112 or 202 of theAct 
(42 U.S.C. 7411, 7412 or 7521);
    (6) The patent license shall provide for termination, subject 
toadequate protections of the legitimate interests of the licensedparty, 
when the circumstances that made the compulsory patent licensenecessary 
cease to exist and are unlikely to recur; and
    (7) The patent license shall provide for adequate remunerationthat 
takes into account the economic value of the license.
    (b) The Administrator, or the Administrator's designee, may decideas 
appropriate to include additional conditions, terms or limitationson the 
scope of the patent license for which application is made tothe Attorney 
General.



PART 96_NOX Budget Trading Program andCair NOX and SO2 Trading Programs for StateImplementation Plans--Table of Contents




         Subpart A_NOX Budget Trading Program GeneralProvisions

Sec.
96.1 Purpose.
96.2 Definitions.
96.3 Measurements, abbreviations, and acronyms.
96.4 Applicability.
96.5 Retired unit exemption.
96.6 Standard requirements.
96.7 Computation of time.

    Subpart B_Authorized Account Representative forNOX Budget Sources

96.10 Authorization and responsibilities of theNOX authorized 
          account representative.
96.11 Alternate NOX authorized accountrepresentative.
96.12 Changing the NOX authorized accountrepresentative and 
          the alternate NOX authorized accountrepresentative; 
          changes in the owners and operators.
96.13 Account certificate of representation.
96.14 Objections concerning the NOX authorizedaccount 
          representative.

                            Subpart C_Permits

96.20 General NOX Budget trading program permitrequirements.
96.21 Submission of NOX Budget permitapplications.
96.22 Information requirements for NOX Budgetpermit 
          applications.
96.23 NOX Budget permit contents.
96.24 Effective date of initial NOX Budgetpermit.
96.25 NOX Budget permit revisions.

                   Subpart D_Compliance Certification

96.30 Compliance certification report.
96.31 Permitting authority's and Administrator's action oncompliance 
          certifications.

                   Subpart E_NOX Allowance Allocations

96.40 State trading program budget.
96.41 Timing requirements for NOX allowanceallocations.
96.42 NOX allowance allocations.

                 Subpart F_NOX Allowance Tracking System

96.50 NOX Allowance Tracking System accounts.
96.51 Establishment of accounts.

[[Page 689]]

96.52 NOX Allowance Tracking Systemresponsibilities of 
          NOX authorized account representative.
96.53 Recordation of NOX allowance allocations.
96.54 Compliance.
96.55 Banking.
96.56 Account error.
96.57 Closing of general accounts.

                    Subpart G_NOX Allowance Transfers

96.60 Submission of NOX allowance transfers.
96.61 EPA recordation.
96.62 Notification.

                   Subpart H_Monitoring and Reporting

96.70 General requirements.
96.71 Initial certification and recertification procedures.
96.72 Out of control periods.
96.73 Notifications.
96.74 Recordkeeping and reporting.
96.75 Petitions.
96.76 Additional requirements to provide heat input data forallocations 
          purposes.

                    Subpart I_Individual Unit Opt-ins

96.80 Applicability.
96.81 General.
96.82 NOX authorized account representative.
96.83 Applying for NOX Budget opt-in permit.
96.84 Opt-in process.
96.85 NOX Budget opt-in permit contents.
96.86 Withdrawal from NOX Budget TradingProgram.
96.87 Change in regulatory status.
96.88 NOX allowance allocations to opt-in units.

Subpart J--Mobile and Area Sources [Reserved]

Subparts K--Z [Reserved]

      Subpart AA_CAIR NOX Annual Trading ProgramGeneral Provisions

96.101 Purpose.
96.102 Definitions.
96.103 Measurements, abbreviations, and acronyms.
96.104 Applicability.
96.105 Retired unit exemption.
96.106 Standard requirements.
96.107 Computation of time.
96.108 Appeal procedures.

      Subpart BB_CAIR Designated Representative for CAIRNOX Sources

96.110 Authorization and responsibilities of CAIR 
          designatedrepresentative.
96.111 Alternate CAIR designated representative.
96.112 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
96.113 Certificate of representation.
96.114 Objections concerning CAIR designated representative.
96.115 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                           Subpart CC_Permits

96.120 General CAIR NOX Annual Trading Programpermit 
          requirements.
96.121 Submission of CAIR permit applications.
96.122 Information requirements for CAIR permitapplications.
96.123 CAIR permit contents and term.
96.124 CAIR permit revisions.

Subpart DD [Reserved]

                Subpart EE_CAIR NOX Allowance Allocations

96.140 State trading budgets.
96.141 Timing requirements for CAIR NOXallowance allocations.
96.142 CAIR NOX allowance allocations.
96.143 Compliance supplement pool.

              Subpart FF_CAIR NOX Allowance Tracking System

96.150 [Reserved]
96.151 Establishment of accounts.
96.152 Responsibilities of CAIR authorized accountrepresentative.
96.153 Recordation of CAIR NOX allowanceallocations.
96.154 Compliance with CAIR NOX emissionslimitation.
96.155 Banking.
96.156 Account error.
96.157 Closing of general accounts.

                 Subpart GG_CAIR NOX Allowance Transfers

96.160 Submission of CAIR NOX allowancetransfers.
96.161 EPA recordation.
96.162 Notification.

                   Subpart HH_Monitoring and Reporting

96.170 General requirements.
96.171 Initial certification and recertification procedures.
96.172 Out of control periods.
96.173 Notifications.
96.174 Recordkeeping and reporting.
96.175 Petitions.

[[Page 690]]

                    Subpart II_CAIR NOX Opt-in Units

96.180 Applicability.
96.181 General.
96.182 CAIR designated representative.
96.183 Applying for CAIR opt-in permit.
96.184 Opt-in process.
96.185 CAIR opt-in permit contents.
96.186 Withdrawal from CAIR NOX Annual TradingProgram.
96.187 Change in regulatory status.
96.188 CAIR NOX allowance allocations to CAIRNOX 
          opt-in units.

Subparts JJ--ZZ [Reserved]

       Subpart AAA_CAIR SO[bdi2] Trading Program GeneralProvisions

96.201 Purpose.
96.202 Definitions.
96.203 Measurements, abbreviations, and acronyms.
96.204 Applicability.
96.205 Retired unit exemption.
96.206 Standard requirements.
96.207 Computation of time.
96.208 Appeal procedures.

   Subpart BBB_CAIR Designated Representative for CAIRSO[bdi2] Sources

96.210 Authorization and responsibilities of CAIR 
          designatedrepresentative.
96.211 Alternate CAIR designated representative.
96.212 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
96.213 Certificate of representation.
96.214 Objections concerning CAIR designated representative.
96.215 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                           Subpart CCC_Permits

96.220 General CAIR SO2 Trading Program permitrequirements.
96.221 Submission of CAIR permit applications.
96.222 Information requirements for CAIR permitapplications.
96.223 CAIR permit contents and term.
96.224 CAIR permit revisions.

Subparts DDD-EEE [Reserved]

           Subpart FFF_CAIR SO[bdi2] Allowance Tracking System

96.250 [Reserved]
96.251 Establishment of accounts.
96.252 Responsibilities of CAIR authorized accountrepresentative.
96.253 Recordation of CAIR SO2 allowances.
96.254 Compliance with CAIR SO2 emissionslimitation.
96.255 Banking.
96.256 Account error.
96.257 Closing of general accounts.

              Subpart GGG_CAIR SO[bdi2] Allowance Transfers

96.260 Submission of CAIR SO2 allowancetransfers.
96.261 EPA recordation.
96.262 Notification.

                  Subpart HHH_Monitoring and Reporting

96.270 General requirements.
96.271 Initial certification and recertification procedures.
96.272 Out of control periods.
96.273 Notifications.
96.274 Recordkeeping and reporting.
96.275 Petitions.

                 Subpart III_CAIR SO[bdi2] Opt-in Units

96.280 Applicability.
96.281 General.
96.282 CAIR designated representative.
96.283 Applying for CAIR opt-in permit.
96.284 Opt-in process.
96.285 CAIR opt-in permit contents.
96.286 Withdrawal from CAIR SO2 Trading Program.
96.287 Change in regulatory status.
96.288 CAIR SO2 allowance allocations to CAIRSO2 
          opt-in units.

Subparts JJJ-ZZZ [Reserved]

   Subpart AAAA_CAIR NOXOzone Season TradingProgram General Provisions

96.301 Purpose.
96.302 Definitions.
96.303 Measurements, abbreviations, and acronyms.
96.304 Applicability.
96.305 Retired unit exemption.
96.306 Standard requirements.
96.307 Computation of time.
96.308 Appeal procedures.

  Subpart BBBB_CAIR Designated Representative for CAIRNOX Ozone Season 
                                 Sources

96.310 Authorization and responsibilities of CAIR 
          designatedrepresentative.
96.311 Alternate CAIR designated representative.
96.312 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
96.313 Certificate of representation.
96.314 Objections concerning CAIR designated representative.

[[Page 691]]

96.315 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                          Subpart CCCC_Permits

96.320 General CAIR NOX Ozone Season TradingProgram permit 
          requirements.
96.321 Submission of CAIR permit applications.
96.322 Information requirements for CAIR permitapplications.
96.323 CAIR permit contents and term.
96.324 CAIR permit revisions.

Subpart DDDD [Reserved]

         Subpart EEEE_CAIR NOX Ozone SeasonAllowance Allocations

96.340 State trading budgets.
96.341 Timing requirements for CAIR NOX OzoneSeason allowance 
          allocations.
96.342 CAIR NOX Ozone Season allowanceallocations.

       Subpart FFFF_CAIR NOX Ozone Season AllowanceTracking System

96.350 [Reserved]
96.351 Establishment of accounts.
96.352 Responsibilities of CAIR authorized accountrepresentative.
96.353 Recordation of CAIR NOX Ozone Seasonallowance 
          allocations.
96.354 Compliance with CAIR NOX emissionslimitation.
96.355 Banking.
96.356 Account error.
96.357 Closing of general accounts.

          Subpart GGGG_CAIR NOX Ozone Season AllowanceTransfers

96.360 Submission of CAIR NOX Ozone Seasonallowance 
          transfers.
96.361 EPA recordation.
96.362 Notification.

                  Subpart HHHH_Monitoring and Reporting

96.370 General requirements.
96.371 Initial certification and recertification procedures.
96.372 Out of control periods.
96.373 Notifications.
96.374 Recordkeeping and reporting.
96.375 Petitions.

             Subpart IIII_CAIR NOX Ozone Season Opt-in Units

96.380 Applicability.
96.381 General.
96.382 CAIR designated representative.
96.383 Applying for CAIR opt-in permit.
96.384 Opt-in process.
96.385 CAIR opt-in permit contents.
96.386 Withdrawal from CAIR NOX Ozone SeasonTrading Program.
96.387 Change in regulatory status.
96.388 CAIR NOX Ozone Season allowanceallocations to CAIR 
          NOX Ozone Season opt-in units.

    Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651,et seq.

    Source: 63 FR 57514, Oct. 27, 1998, unless otherwisenoted.



         Subpart A_NOX Budget Trading Program GeneralProvisions



Sec. 96.1  Purpose.

    This part establishes general provisions and the 
applicability,permitting, allowance, excess emissions, monitoring, and 
opt-inprovisions for the NOX Budget Trading Program for 
Stateimplementation plans as a means of mitigating the interstate 
transportof ozone and nitrogen oxides, an ozone precursor. The owner 
oroperator of a unit, or any other person, shall comply withrequirements 
of this part as a matter of federal law only to theextent a State that 
has jurisdiction over the unit incorporates byreference provisions of 
this part, or otherwise adopts suchrequirements of this part, and 
requires compliance, the State submitsto the Administrator a State 
implementation plan including suchadoption and such compliance 
requirement, and the Administratorapproves the portion of the State 
implementation plan including suchadoption and such compliance 
requirement. To the extent a State adoptsrequirements of this part, 
including at a minimum the requirements ofsubpart A (except for Sec. 
96.4(b)), subparts B through D,subpart F (except for Sec. 96.55(c)), 
and subparts G and Hof this part, the State authorizes the Administrator 
to assist theState in implementing the NOX Budget Trading 
Program bycarrying out the functions set forth for the Administrator in 
suchrequirements.



Sec. 96.2  Definitions.

    The terms used in this part shall have the meanings set forth inthis 
section as follows:
    Account certificate of representation means the completedand signed 
submission required by subpart B of this part forcertifying the 
designation of a

[[Page 692]]

NOX authorizedaccount representative for a NOX 
Budget source or a groupof identified NOX Budget sources who 
is authorized torepresent the owners and operators of such source or 
sources and ofthe NOX Budget units at such source or sources 
with regardto matters under the NOX Budget Trading Program.
    Account number means the identification number given by 
theAdministrator to each NOX Allowance Tracking 
Systemaccount.
    Acid Rain emissions limitation means, as defined inSec. 72.2 of 
this chapter, a limitation on emissions ofsulfur dioxide or nitrogen 
oxides under the Acid Rain Program undertitle IV of the CAA.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means the determination by thepermitting 
authority or the Administrator of the number ofNOX allowances 
to be initially credited to aNOX Budget unit or an allocation 
set-aside.
    Automated data acquisition and handling system or DAHSmeans that 
component of the CEMS, or other emissions monitoring systemapproved for 
use under subpart H of this part, designed to interpretand convert 
individual output signals from pollutant concentrationmonitors, flow 
monitors, diluent gas monitors, and other componentparts of the 
monitoring system to produce a continuous record of themeasured 
parameters in the measurement units required by subpart H ofthis part.
    Boiler means an enclosed fossil or other fuel-firedcombustion device 
used to produce heat and to transfer heat torecirculating water, steam, 
or other medium.
    CAA means the CAA, 42 U.S.C. 7401, et seq., as amendedby Pub. L. No. 
101-549 (November 15, 1990).
    Combined cycle system means a system comprised of one ormore 
combustion turbines, heat recovery steam generators, and steamturbines 
configured to improve overall efficiency of electricitygeneration or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and aturbine, and 
in which the flue gas resulting from the combustion offuel in the 
combustor passes through the turbine, rotating theturbine.
    Commence commercial operation means, with regard to a unitthat 
serves a generator, to have begun to produce steam, gas, or otherheated 
medium used to generate electricity for sale or use, includingtest 
generation. Except as provided in Sec. 96.5, for a unitthat is a 
NOX Budget unit under Sec. 96.4 on thedate the unit 
commences commercial operation, such date shall remainthe unit's date of 
commencement of commercial operation even if theunit is subsequently 
modified, reconstructed, or repowered. Except asprovided in Sec. 96.5 
or subpart I of this part, for a unitthat is not a NOX Budget 
unit under Sec. 96.4 onthe date the unit commences commercial 
operation, the date the unitbecomes a NOX Budget unit under 
Sec. 96.4 shallbe the unit's date of commencement of commercial 
operation.
    Commence operation means to have begun any mechanical,chemical, or 
electronic process, including, with regard to a unit,start-up of a 
unit's combustion chamber. Except as provided inSec. 96.5, for a unit 
that is a NOX Budget unitunder Sec. 96.4 on the date of 
commencement of operation,such date shall remain the unit's date of 
commencement of operationeven if the unit is subsequently modified, 
reconstructed, orrepowered. Except as provided in Sec. 96.5 or subpart 
I ofthis part, for a unit that is not a NOX Budget unit 
underSec. 96.4 on the date of commencement of operation, the datethe 
unit becomes a NOX Budget unit underSec. 96.4 shall be the 
unit's date of commencement ofoperation.
    Common stack means a single flue through which emissionsfrom two or 
more units are exhausted.
    Compliance account means a NOX AllowanceTracking System 
account, established by the Administrator for aNOX Budget 
unit under subpart F of this part, in which theNOX allowance 
allocations for the unit are initiallyrecorded and in which are held 
NOX allowances availablefor use by the unit for a control 
period for the purpose of

[[Page 693]]

meeting the unit's NOX Budget emissions limitation.
    Compliance certification means a submission to thepermitting 
authority or the Administrator, as appropriate, that isrequired under 
subpart D of this part to report a NOXBudget source's or a 
NOX Budget unit's compliance ornoncompliance with this part 
and that is signed by the NOXauthorized account 
representative in accordance with subpart B of thispart.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart H of this part to sample,analyze, measure, and 
provide, by readings taken at least once every15 minutes of the measured 
parameters, a permanent record of nitrogenoxides emissions, expressed in 
tons per hour for nitrogen oxides. Thefollowing systems are component 
parts included, consistent with part75 of this chapter, in a continuous 
emission monitoring system:
    (1) Flow monitor;
    (2) Nitrogen oxides pollutant concentration monitors;
    (3) Diluent gas monitor (oxygen or carbon dioxide) when 
suchmonitoring is required by subpart H of this part;
    (4) A continuous moisture monitor when such monitoring is requiredby 
subpart H of this part; and
    (5) An automated data acquisition and handling system.
    Control period means the period beginning May 1 of a yearand ending 
on September 30 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the NOX authorized account representativeand as determined 
by the Administrator in accordance with subpart H ofthis part.
    Energy Information Administration means the EnergyInformation 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxidesemitted by a 
NOX Budget unit during a control period thatexceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil fuel-fired means, with regard to a unit:
    (1) The combustion of fossil fuel, alone or in combination withany 
other fuel, where fossil fuel actually combusted comprises morethan 50 
percent of the annual heat input on a Btu basis during anyyear starting 
in 1995 or, if a unit had no heat input starting in1995, during the last 
year of operation of the unit prior to 1995; or
    (2) The combustion of fossil fuel, alone or in combination withany 
other fuel, where fossil fuel is projected to comprise more than50 
percent of the annual heat input on a Btu basis during any year;provided 
that the unit shall be ``fossil fuel-fired'' asof the date, during such 
year, on which the unit begins combustingfossil fuel.
    General account means a NOX Allowance TrackingSystem 
account, established under subpart F of this part, that is nota 
compliance account or an overdraft account.
    Generator means a device that produces electricity.
    Heat input means the product (in mmBtu/time) of the grosscalorific 
value of the fuel (in Btu/lb) and the fuel feed rate into acombustion 
device (in mass of fuel/time), as measured, recorded, andreported to the 
Administrator by the NOX authorizedaccount representative and 
as determined by the Administrator inaccordance with subpart H of this 
part, and does not include the heatderived from preheated combustion 
air, recirculated flue gases, orexhaust from other sources.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energy fromany specified 
unit and pays its proportional amount of such unit'stotal costs, 
pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or

[[Page 694]]

    (3) For a period equal to or greater than 25 years or 70percent of 
the economic useful life of the unit determined as of thetime the unit 
is built, with option rights to purchase or release someportion of the 
nameplate capacity and associated energy generated bythe unit at the end 
of the period.
    Maximum design heat input means the ability of a unit tocombust a 
stated maximum amount of fuel per hour on a steady statebasis, as 
determined by the physical design and physicalcharacteristics of the 
unit.
    Maximum potential hourly heat input means an hourly heatinput used 
for reporting purposes when a unit lacks certified monitorsto report 
heat input. If the unit intends to use appendix D of part 75of this 
chapter to report heat input, this value should be calculated,in 
accordance with part 75 of this chapter, using the maximum fuelflow rate 
and the maximum gross calorific value. If the unit intendsto use a flow 
monitor and a diluent gas monitor, this value should bereported, in 
accordance with part 75 of this chapter, using themaximum potential 
flowrate and either the maximum carbon dioxideconcentration (in percent 
CO2) or the minimum oxygenconcentration (in percent 
O2).
    Maximum potential NOX emission rate meansthe emission 
rate of nitrogen oxides (in lb/mmBtu) calculated inaccordance with 
section 3 of appendix F of part 75 of this chapter,using the maximum 
potential nitrogen oxides concentration as definedin section 2 of 
appendix A of part 75 of this chapter, and either themaximum oxygen 
concentration (in percent O2) or theminimum carbon dioxide 
concentration (in percent CO2),under all operating conditions 
of the unit except for unit start up,shutdown, and upsets.
    Maximum rated hourly heat input means a unit-specificmaximum hourly 
heat input (mmBtu) which is the higher of themanufacturer's maximum 
rated hourly heat input or the highest observedhourly heat input.
    Monitoring system means any monitoring system that meets 
therequirements of subpart H of this part, including a 
continuousemissions monitoring system, an excepted monitoring system, or 
analternative monitoring system.
    Most stringent State or Federal NOX emissionslimitation 
means, with regard to a NOX Budget opt-insource, the lowest 
NOX emissions limitation (in terms oflb/mmBtu) that is 
applicable to the unit under State or Federal law,regardless of the 
averaging period to which the emissions limitationapplies.
    Nameplate capacity means the maximum electrical generatingoutput (in 
MWe) that a generator can sustain over a specified periodof time when 
not restricted by seasonal or other deratings as measuredin accordance 
with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permitadministered 
by the permitting authority pursuant to the CAA andregulatory authority 
under the CAA, other than title V of the CAA andpart 70 or 71 of this 
chapter.
    NOX allowance means an authorization bythe permitting 
authority or the Administrator under theNOX Budget Trading 
Program to emit up to one ton ofnitrogen oxides during the control 
period of the specified year or ofany year thereafter.
    NOX allowance deduction or deductNOX 
allowances means the permanent withdrawal ofNOX allowances by 
the Administrator from a NOXAllowance Tracking System 
compliance account or overdraft account toaccount for the number of tons 
of NOX emissions from aNOX Budget unit for a 
control period, determined inaccordance with subpart H of this part, or 
for any other allowancesurrender obligation under this part.
    NOX allowances held or holdNOX allowances 
means the NOXallowances recorded by the Administrator, or 
submitted to theAdministrator for recordation, in accordance with 
subparts F and G ofthis part, in a NOX Allowance Tracking 
System account.
    NOX Allowance Tracking System means thesystem by which 
the Administrator records allocations, deductions, andtransfers of 
NOX allowances under the NOXBudget Trading 
Program.
    NOX Allowance Tracking System accountmeans an account in 
the NOX Allowance Tracking Systemestablished by the 
Administrator for purposes of

[[Page 695]]

recording theallocation, holding, transferring, or deducting of 
NOXallowances.
    NOX allowance transfer deadline meansmidnight of November 
30 or, if November 30 is not a business day,midnight of the first 
business day thereafter and is the deadline bywhich NOX 
allowances may be submitted for recordation in aNOX Budget 
unit's compliance account, or the overdraftaccount of the source where 
the unit is located, in order to meet theunit's NOX Budget 
emissions limitation for the controlperiod immediately preceding such 
deadline.
    NOX authorized account representativemeans, for a 
NOX Budget source or NOX Budgetunit at the source, 
the natural person who is authorized by the ownersand operators of the 
source and all NOX Budget units atthe source, in accordance 
with subpart B of this part, to representand legally bind each owner and 
operator in matters pertaining to theNOX Budget Trading 
Program or, for a general account, thenatural person who is authorized, 
in accordance with subpart F of thispart, to transfer or otherwise 
dispose of NOX allowancesheld in the general account.
    NOX Budget emissions limitation means, fora 
NOX Budget unit, the tonnage equivalent of theNOX 
allowances available for compliance deduction for theunit and for a 
control period under Sec. 96.54(a) and (b),adjusted by any deductions 
of such NOX allowances toaccount for actual utilization under 
Sec. 96.42(e) for thecontrol period or to account for excess emissions 
for a prior controlperiod under Sec. 96.54(d) or to account for 
withdrawal fromthe NOX Budget Program, or for a change in 
regulatorystatus, for a NOX Budget opt-in source underSec. 
96.86 or Sec. 96.87.
    NOX Budget opt-in permit means aNOX Budget 
permit covering a NOX Budget opt-insource.
    NOX Budget opt-in source means a unit thathas been 
elected to become a NOX Budget unit under theNOX 
Budget Trading Program and whose NOXBudget opt-in permit has 
been issued and is in effect under subpart Iof this part.
    NOX Budget permit means the legallybinding and federally 
enforceable written document, or portion of suchdocument, issued by the 
permitting authority under this part,including any permit revisions, 
specifying the NOX BudgetTrading Program requirements 
applicable to a NOX Budgetsource, to each NOX 
Budget unit at the NOXBudget source, and to the owners and 
operators and the NOXauthorized account representative of the 
NOX Budget sourceand each NOX Budget unit.
    NOX Budget source means a source thatincludes one or more 
NOX Budget units.
    NOX Budget Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reductionprogram established 
in accordance with this part and pursuant toSec. 51.121 of this 
chapter, as a means of mitigating theinterstate transport of ozone and 
nitrogen oxides, an ozone precursor.
    NOX Budget unit means a unit that issubject to the 
NOX Budget Trading Program emissionslimitation under Sec. 
96.4 or Sec. 96.80.
    Operating means, with regard to a unit underSec. Sec. 96.22(d)(2) 
and 96.80, having documented heatinput for more than 876 hours in the 6 
months immediately precedingthe submission of an application for an 
initial NOX Budgetpermit under Sec. 96.83(a).
    Operator means any person who operates, controls, orsupervises a 
NOX Budget unit, a NOX Budgetsource, or unit for 
which an application for a NOX Budgetopt-in permit under 
Sec. 96.83 is submitted and not deniedor withdrawn and shall include, 
but not be limited to, any holdingcompany, utility system, or plant 
manager of such a unit or source.
    Opt-in means to be elected to become a NOXBudget unit 
under the NOX Budget Trading Program through afinal, 
effective NOX Budget opt-in permit under subpart Iof this 
part.
    Overdraft account means the NOX AllowanceTracking System 
account, established by the Administrator undersubpart F of this part, 
for each NOX Budget source wherethere are two or more 
NOX Budget units.
    Owner means any of the following persons:
    (1) Any holder of any portion of the legal or equitable title in 
aNOX Budget unit or in a unit for which an application fora 
NOX Budget opt-in permit

[[Page 696]]

under Sec. 96.83is submitted and not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX 
Budgetunit or in a unit for which an application for a 
NOXBudget opt-in permit under Sec. 96.83 is submitted and 
notdenied or withdrawn; or
    (3) Any purchaser of power from a NOX Budget unit orfrom 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 96.83 is submitted and not denied orwithdrawn under a 
life-of-the-unit, firm power contractualarrangement. However, unless 
expressly provided for in a leaseholdagreement, owner shall not include 
a passive lessor, or a person whohas an equitable interest through such 
lessor, whose rental paymentsare not based, either directly or 
indirectly, upon the revenues orincome from the NOX Budget 
unit or the unit for which anapplication for a NOX Budget 
opt-in permit underSec. 96.83 is submitted and not denied or withdrawn; 
or
    (4) With respect to any general account, any person who has 
anownership interest with respect to the NOX allowances 
heldin the general account and who is subject to the binding agreement 
forthe NOX authorized account representative to representthat 
person's ownership interest with respect to NOXallowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
NOX Budget Trading Program inaccordance with subpart C of 
this part.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in writing orby authorized 
electronic transmission), as indicated in an officialcorrespondence log, 
or by a notation made on the document,information, or correspondence, by 
the permitting authority or theAdministrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard toNOX 
allowances, the movement of NOX allowancesby the 
Administrator from one NOX Allowance TrackingSystem account 
to another, for purposes of allocation, transfer, ordeduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified in appendix A of part60 of 
this chapter.
    Serial number means, when referring to NOXallowances, the 
unique identification number assigned to eachNOX allowance by 
the Administrator, underSec. 96.53(c).
    Source means any governmental, institutional, commercial, 
orindustrial structure, installation, plant, building, or facility 
thatemits or has the potential to emit any regulated air pollutant 
underthe CAA. For purposes of section 502(c) of the CAA, a``source,'' 
including a ``source'' withmultiple units, shall be considered a single 
``facility.''
    State means one of the 48 contiguous States and the Districtof 
Columbia specified in Sec. 51.121 of this chapter, or anynon-federal 
authority in or including such States or the District ofColumbia 
(including local agencies, and Statewide agencies) or anyeligible Indian 
tribe in an area of such State or the District ofColumbia, that adopts a 
NOX Budget Trading Programpursuant to Sec. 51.121 of this 
chapter. To the extent aState incorporates by reference the provisions 
of this part, the term``State'' shall mean the incorporating State. The 
term``State'' shall have its conventional meaning where suchmeaning is 
clear from the context.
    State trading program budget means the total number ofNOX 
tons apportioned to all NOX Budget unitsin a given State, in 
accordance with the NOX BudgetTrading Program, for use in a 
given control period.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission,''``service,'' or ``mailing'' 
deadline shall bedetermined by the date of dispatch, transmission, or 
mailing and notthe date of receipt.

[[Page 697]]

    Title V operating permit means a permit issued undertitle V of the 
CAA and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the CAA and part 70 or 71 of this chapter.
    Ton or tonnage means any ``short ton'' (i.e.,2,000 pounds). For the 
purpose of determining compliance with theNOX Budget 
emissions limitation, total tons for a controlperiod shall be calculated 
as the sum of all recorded hourly emissions(or the tonnage equivalent of 
the recorded hourly emissions rates) inaccordance with subpart H of this 
part, with any remaining fraction ofa ton equal to or greater than 0.50 
ton deemed to equal one ton andany fraction of a ton less than 0.50 ton 
deemed to equal zero tons.
    Unit means a fossil fuel-fired stationary boiler, combustionturbine, 
or combined cycle system.
    Unit load means the total (i.e., gross) output of a unit inany 
control period (or other specified time period) produced bycombusting a 
given heat input of fuel, expressed in terms of:
    (1) The total electrical generation (MWe) produced by the 
unit,including generation for use within the plant; or
    (2) In the case of a unit that uses heat input for purposes 
otherthan electrical generation, the total steam pressure (psia) 
producedby the unit, including steam for use by the unit.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation meansany hour (or 
fraction of an hour) during which a unit combusts anyfuel.
    Utilization means the heat input (expressed in mmBtu/time)for a 
unit. The unit's total heat input for the control period in eachyear 
will be determined in accordance with part 75 of this chapter ifthe 
NOX Budget unit was otherwise subject to therequirements of 
part 75 of this chapter for the year, or will be basedon the best 
available data reported to the Administrator for the unitif the unit was 
not otherwise subject to the requirements of part 75of this chapter for 
the year.



Sec. 96.3  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this part 
aredefined as follows:

Btu--British thermal unit.
hr--hour.
Kwh--kilowatt hour.
lb--pounds.
mmBtu--million Btu.
MWe--megawatt electrical.
ton--2000 pounds.
CO2--carbon dioxide.
NOX--nitrogen oxides.
O2--oxygen.



Sec. 96.4  Applicability.

    (a) The following units in a State shall be NOX 
Budgetunits, and any source that includes one or more such units shall 
be aNOX Budget source, subject to the requirements of 
thispart:
    (1) Any unit that, any time on or after January 1, 1995, serves 
agenerator with a nameplate capacity greater than 25 MWe and sells 
anyamount of electricity; or
    (2) Any unit that is not a unit under paragraph (a) of thissection 
and that has a maximum design heat input greater than 250mmBtu/hr.
    (b) Notwithstanding paragraph (a) of this section, a unit 
underparagraph (a) of this section shall be subject only to 
therequirements of this paragraph (b) if the unit has a 
federallyenforceable permit that meets the requirements of paragraph 
(b)(1) ofthis section and restricts the unit to burning only natural gas 
orfuel oil during a control period in 2003 or later and each 
controlperiod thereafter and restricts the unit's operating hours during 
eachsuch control period to the number of hours (determined in 
accordancewith paragraph (b)(1)(ii) and (iii) of this section) that 
limits theunit's potential NOX mass emissions for the control 
periodto 25 tons or less. Notwithstanding paragraph (a) of this 
section,starting with the effective date of such federally enforceable 
permit,the unit shall not be a NOX Budget unit.
    (1) For each control period under paragraph (b) of this section,the 
federally enforceable permit must:
    (i) Restrict the unit to burning only natural gas or fuel oil.

[[Page 698]]

    (ii) Restrict the unit's operating hours to the numbercalculated by 
dividing 25 tons of potential NOX massemissions by the unit's 
maximum potential hourly NOX massemissions.
    (iii) Require that the unit's potential NOX massemissions 
shall be calculated as follows:
    (A) Select the default NOX emission rate in Table 2 
ofSec. 75.19 of this chapter that would otherwise beapplicable assuming 
that the unit burns only the type of fuel (i.e.,only natural gas or only 
fuel oil) that has the highest defaultNOX emission factor of 
any type of fuel that the unit isallowed to burn under the fuel use 
restriction in paragraph (b)(1)(i)of this section; and
    (B) Multiply the default NOX emission rate underparagraph 
(b)(1)(iii)(A) of this section by the unit's maximum ratedhourly heat 
input. The owner or operator of the unit may petition thepermitting 
authority to use a lower value for the unit's maximum ratedhourly heat 
input than the value as defined under Sec. 96.2.The permitting 
authority may approve such lower value if the owner oroperator 
demonstrates that the maximum hourly heat input specified bythe 
manufacturer or the highest observed hourly heat input, or both,are not 
representative, and that such lower value is representative,of the 
unit's current capabilities because modifications have beenmade to the 
unit, limiting its capacity permanently.
    (iv) Require that the owner or operator of the unit shall retainat 
the source that includes the unit, for 5 years, recordsdemonstrating 
that the operating hours restriction, the fuel userestriction, and the 
other requirements of the permit related to theserestrictions were met.
    (v) Require that the owner or operator of the unit shall reportthe 
unit's hours of operation (treating any partial hour of operationas a 
whole hour of operation) during each control period to thepermitting 
authority by November 1 of each year for which the unit issubject to the 
federally enforceable permit.
    (2) The permitting authority that issues the federally 
enforceablepermit with the fuel use restriction under paragraph 
(b)(1)(i) and theoperating hours restriction under paragraphs (b)(1)(ii) 
and (iii) ofthis section will notify the Administrator in writing of 
each unitunder paragraph (a) of this section whose federally enforceable 
permitissued by the permitting authority includes such restrictions. 
Thepermitting authority will also notify the Administrator in writing 
ofeach unit under paragraph (a) of this section whose 
federallyenforceable permit issued by the permitting authority is 
revised toremove any such restriction, whose federally enforceable 
permit issuedby the permitting authority includes any such restriction 
that is nolonger applicable, or which does not comply with any such 
restriction.
    (3) If, for any control period under paragraph (b) of thissection, 
the fuel use restriction under paragraph (b)(1)(i) of thissection or the 
operating hours restriction under paragraphs (b)(1)(ii)and (iii) of this 
section is removed from the unit's federallyenforceable permit or 
otherwise becomes no longer applicable or if,for any such control 
period, the unit does not comply with the fueluse restriction under 
paragraph (b)(1)(i) of this section or theoperating hours restriction 
under paragraphs (b)(1)(ii) and (iii) ofthis section, the unit shall be 
a NOX Budget unit, subjectto the requirements of this part. 
Such unit shall be treated ascommencing operation and, for a unit under 
paragraph (a)(1) of thissection, commencing commercial operation on 
September 30 of thecontrol period for which the fuel use restriction or 
the operatinghours restriction is no longer applicable or during which 
the unitdoes not comply with the fuel use restriction or the operating 
hoursrestriction.



Sec. 96.5  Retired unit exemption.

    (a) This section applies to any NOX Budget unit, 
otherthan a NOX Budget opt-in source, that is 
permanentlyretired.
    (b)(1) Any NOX Budget unit, other than aNOX 
Budget opt-in source, that is permanently retiredshall be exempt from 
the NOX Budget Trading Program,except for the provisions of 
this section, Sec. Sec. 96.2,96.3, 96.4, 96.7 and subparts E, F, and G 
of this part.

[[Page 699]]

    (2) The exemption under paragraph (b)(1) of this sectionshall become 
effective the day on which the unit is permanentlyretired. Within 30 
days of permanent retirement, the NOXauthorized account 
representative (authorized in accordance withsubpart B of this part) 
shall submit a statement to the permittingauthority otherwise 
responsible for administering any NOXBudget permit for the 
unit. A copy of the statement shall be submittedto the Administrator. 
The statement shall state (in a formatprescribed by the permitting 
authority) that the unit is permanentlyretired and will comply with the 
requirements of paragraph (c) of thissection.
    (3) After receipt of the notice under paragraph (b)(2) of 
thissection, the permitting authority will amend any permit covering 
thesource at which the unit is located to add the provisions 
andrequirements of the exemption under paragraphs (b)(1) and (c) of 
thissection.
    (c) Special provisions. (1) A unit exempt under this sectionshall 
not emit any nitrogen oxides, starting on the date that theexemption 
takes effect. The owners and operators of the unit will beallocated 
allowances in accordance with subpart E of this part.
    (2)(i) A unit exempt under this section and located at a sourcethat 
is required, or but for this exemption would be required, to havea title 
V operating permit shall not resume operation unless theNOX 
authorized account representative of the sourcesubmits a complete 
NOX Budget permit application underSec. 96.22 for the unit 
not less than 18 months (or suchlesser time provided under the 
permitting authority's title Voperating permits regulations for final 
action on a permitapplication) prior to the later of May 1, 2003 or the 
date on whichthe unit is to first resume operation.
    (ii) A unit exempt under this section and located at a source thatis 
required, or but for this exemption would be required, to have anon-
title V permit shall not resume operation unless theNOX 
authorized account representative of the sourcesubmits a complete 
NOX Budget permit application underSec. 96.22 for the unit 
not less than 18 months (or suchlesser time provided under the 
permitting authority's non-title Vpermits regulations for final action 
on a permit application) prior tothe later of May 1, 2003 or the date on 
which the unit is to firstresume operation.
    (3) The owners and operators and, to the extent applicable, 
theNOX authorized account representative of a unit 
exemptunder this section shall comply with the requirements of 
theNOX Budget Trading Program concerning all periods forwhich 
the exemption is not in effect, even if such requirements arise,or must 
be complied with, after the exemption takes effect.
    (4) A unit that is exempt under this section is not eligible to bea 
NOX Budget opt-in source under subpart I of this part.
    (5) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under this section 
shallretain at the source that includes the unit, records 
demonstratingthat the unit is permanently retired. The 5-year period for 
keepingrecords may be extended for cause, at any time prior to the end 
of theperiod, in writing by the permitting authority or the 
Administrator.The owners and operators bear the burden of proof that the 
unit ispermanently retired.
    (6) Loss of exemption. (i) On the earlier of the followingdates, a 
unit exempt under paragraph (b) of this section shall loseits exemption:
    (A) The date on which the NOX authorized 
accountrepresentative submits a NOX Budget permit 
applicationunder paragraph (c)(2) of this section; or
    (B) The date on which the NOX authorized 
accountrepresentative is required under paragraph (c)(2) of this section 
tosubmit a NOX Budget permit application.
    (ii) For the purpose of applying monitoring requirements 
undersubpart H of this part, a unit that loses its exemption under 
thissection shall be treated as a unit that commences operation 
orcommercial operation on the first date on which the unit 
resumesoperation.



Sec. 96.6  Standard requirements.

    (a) Permit Requirements. (1) The NOX authorizedaccount 
representative of

[[Page 700]]

each NOX Budget sourcerequired to have a federally 
enforceable permit and eachNOX Budget unit required to have a 
federally enforceablepermit at the source shall:
    (i) Submit to the permitting authority a complete 
NOXBudget permit application under Sec. 96.22 in 
accordancewith the deadlines specified in Sec. 96.21(b) and (c);
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review 
aNOX Budget permit application and issue or deny 
aNOX Budget permit.
    (2) The owners and operators of each NOX Budget 
sourcerequired to have a federally enforceable permit and 
eachNOX Budget unit required to have a federally 
enforceablepermit at the source shall have a NOX Budget 
permit issuedby the permitting authority and operate the unit in 
compliance withsuch NOX Budget permit.
    (3) The owners and operators of a NOX Budget sourcethat 
is not otherwise required to have a federally enforceable permitare not 
required to submit a NOX Budget permitapplication, and to 
have a NOX Budget permit, undersubpart C of this part for 
such NOX Budget source.
    (b) Monitoring requirements. (1) The owners and operatorsand, to the 
extent applicable, the NOX authorized accountrepresentative 
of each NOX Budget source and eachNOX Budget unit 
at the source shall comply with themonitoring requirements of subpart H 
of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart H of this part shall be used to determine 
compliance bythe unit with the NOX Budget emissions 
limitation underparagraph (c) of this section.
    (c) Nitrogen oxides requirements. (1) The owners andoperators of 
each NOX Budget source and eachNOX Budget unit at 
the source shall hold NOXallowances available for compliance 
deductions underSec. 96.54, as of the NOX allowance 
transferdeadline, in the unit's compliance account and the source's 
overdraftaccount in an amount not less than the total NOX 
emissionsfor the control period from the unit, as determined in 
accordance withsubpart H of this part, plus any amount necessary to 
account foractual utilization under Sec. 96.42(e) for the 
controlperiod.
    (2) Each ton of nitrogen oxides emitted in excess of 
theNOX Budget emissions limitation shall constitute aseparate 
violation of this part, the CAA, and applicable State law.
    (3) A NOX Budget unit shall be subject to therequirements 
under paragraph (c)(1) of this section starting on thelater of May 1, 
2003 or the date on which the unit commencesoperation.
    (4) NOX allowances shall be held in, deducted from, 
ortransferred among NOX Allowance Tracking System accountsin 
accordance with subparts E, F, G, and I of this part.
    (5) A NOX allowance shall not be deducted, in order 
tocomply with the requirements under paragraph (c)(1) of this 
section,for a control period in a year prior to the year for which 
theNOX allowance was allocated.
    (6) A NOX allowance allocated by the permittingauthority 
or the Administrator under the NOX BudgetTrading Program is a 
limited authorization to emit one ton of nitrogenoxides in accordance 
with the NOX Budget Trading Program.No provision of the 
NOX Budget Trading Program, theNOX Budget permit 
application, the NOX Budgetpermit, or an exemption under 
Sec. 96.5 and no provision oflaw shall be construed to limit the 
authority of the United States orthe State to terminate or limit such 
authorization.
    (7) A NOX allowance allocated by the permittingauthority 
or the Administrator under the NOX BudgetTrading Program does 
not constitute a property right.
    (8) Upon recordation by the Administrator under subpart F, G, or Iof 
this part, every allocation, transfer, or deduction of aNOX 
allowance to or from a NOX Budget unit'scompliance account or 
the overdraft account of the source where theunit is located is deemed 
to amend automatically, and become a partof, any NOX Budget 
permit of the NOX Budgetunit by operation of law without any 
further review.
    (d) Excess emissions requirements. (1) The owners andoperators of a 
NOX Budget unit that has excess emissionsin any control 
period shall:

[[Page 701]]

    (i) Surrender the NOX allowances required fordeduction 
under Sec. 96.54(d)(1); and
    (ii) Pay any fine, penalty, or assessment or comply with any 
otherremedy imposed under Sec. 96.54(d)(3).
    (e) Recordkeeping and Reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the NOXBudget source 
and each NOX Budget unit at the source shallkeep on site at 
the source each of the following documents for aperiod of 5 years from 
the date the document is created. This periodmay be extended for cause, 
at any time prior to the end of 5 years, inwriting by the permitting 
authority or the Administrator.
    (i) The account certificate of representation for theNOX 
authorized account representative for the source andeach NOX 
Budget unit at the source and all documents thatdemonstrate the truth of 
the statements in the account certificate ofrepresentation, in 
accordance with Sec. 96.13; provided thatthe certificate and documents 
shall be retained on site at the sourcebeyond such 5-year period until 
such documents are superseded becauseof the submission of a new account 
certificate of representationchanging the NOX authorized 
account representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
H of this part; provided that to the extent that subpart H ofthis part 
provides for a 3-year period for recordkeeping, the 3-yearperiod shall 
apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
NOXBudget Trading Program.
    (iv) Copies of all documents used to complete a NOXBudget 
permit application and any other submission under theNOX 
Budget Trading Program or to demonstrate compliancewith the requirements 
of the NOX Budget Trading Program.
    (2) The NOX authorized account representative of 
aNOX Budget source and each NOX Budget unit atthe 
source shall submit the reports and compliance certificationsrequired 
under the NOX Budget Trading Program, includingthose under 
subparts D, H, or I of this part.
    (f) Liability. (1) Any person who knowingly violates anyrequirement 
or prohibition of the NOX Budget TradingProgram, a 
NOX Budget permit, or an exemption underSec. 96.5 shall be 
subject to enforcement pursuant toapplicable State or Federal law.
    (2) Any person who knowingly makes a false material statement inany 
record, submission, or report under the NOX BudgetTrading 
Program shall be subject to criminal enforcement pursuant tothe 
applicable State or Federal law.
    (3) No permit revision shall excuse any violation of therequirements 
of the NOX Budget Trading Program that occursprior to the 
date that the revision takes effect.
    (4) Each NOX Budget source and each NOXBudget 
unit shall meet the requirements of the NOX BudgetTrading 
Program.
    (5) Any provision of the NOX Budget Trading Programthat 
applies to a NOX Budget source (including a 
provisionapplicable to the NOX authorized account 
representative ofa NOX Budget source) shall also apply to the 
owners andoperators of such source and of the NOX Budget 
units atthe source.
    (6) Any provision of the NOX Budget Trading Programthat 
applies to a NOX Budget unit (including a provisionapplicable 
to the NOX authorized account representative ofa 
NOX budget unit) shall also apply to the owners andoperators 
of such unit. Except with regard to the requirementsapplicable to units 
with a common stack under subpart H of this part,the owners and 
operators and the NOX authorized accountrepresentative of one 
NOX Budget unit shall not be liablefor any violation by any 
other NOX Budget unit of whichthey are not owners or 
operators or the NOX authorizedaccount representative and 
that is located at a source of which theyare not owners or operators or 
the NOX authorized accountrepresentative.
    (g) Effect on other authorities. No provision of theNOX 
Budget Trading Program, a NOX Budgetpermit application, a 
NOX Budget permit, or an exemptionunder Sec. 96.5 shall be 
construed as exempting or excludingthe owners

[[Page 702]]

and operators and, to the extent applicable, theNOX 
authorized account representative of a NOXBudget source or 
NOX Budget unit from compliance with anyother provision of 
the applicable, approved State implementation plan,a federally 
enforceable permit, or the CAA.



Sec. 96.7  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theNOX Budget Trading Program, to begin on the occurrence 
ofan act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theNOX Budget Trading Program, to begin before the 
occurrenceof an act or event shall be computed so that the period ends 
the daybefore the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the NOX Budget Trading Program, falls on a 
weekendor a State or Federal holiday, the time period shall be extended 
tothe next business day.



  Subpart B_NOX Authorized Account Representativefor NOX Budget Sources



Sec. 96.10  Authorization and responsibilities of the NOXauthorized account representative.

    (a) Except as provided under Sec. 96.11, eachNOX Budget 
source, including all NOX Budgetunits at the source, shall 
have one and only one NOXauthorized account representative, 
with regard to all matters underthe NOX Budget Trading 
Program concerning the source orany NOX Budget unit at the 
source.
    (b) The NOX authorized account representative of 
theNOX Budget source shall be selected by an agreementbinding 
on the owners and operators of the source and allNOX Budget 
units at the source.
    (c) Upon receipt by the Administrator of a complete 
accountcertificate of representation under Sec. 96.13, 
theNOX authorized account representative of the source 
shallrepresent and, by his or her representations, actions, inactions, 
orsubmissions, legally bind each owner and operator of theNOX 
Budget source represented and each NOXBudget unit at the 
source in all matters pertaining to theNOX Budget Trading 
Program, not withstanding any agreementbetween the NOX 
authorized account representative and suchowners and operators. The 
owners and operators shall be bound by anydecision or order issued to 
the NOX authorized accountrepresentative by the permitting 
authority, the Administrator, or acourt regarding the source or unit.
    (d) No NOX Budget permit shall be issued, and 
noNOX Allowance Tracking System account shall be 
establishedfor a NOX Budget unit at a source, until the 
Administratorhas received a complete account certificate of 
representation underSec. 96.13 for a NOX authorized 
accountrepresentative of the source and the NOX Budget units 
atthe source.
    (e)(1) Each submission under the NOX Budget 
TradingProgram shall be submitted, signed, and certified by 
theNOX authorized account representative for 
eachNOX Budget source on behalf of which the submission 
ismade. Each such submission shall include the following 
certificationstatement by the NOX authorized account 
representative:``I am authorized to make this submission on behalf of 
theowners and operators of the NOX Budget sources 
orNOX Budget units for which the submission is made. Icertify 
under penalty of law that I have personally examined, and amfamiliar 
with, the statements and information submitted in thisdocument and all 
its attachments. Based on my inquiry of thoseindividuals with primary 
responsibility for obtaining the information,I certify that the 
statements and information are to the best of myknowledge and belief 
true, accurate, and complete. I am aware thatthere are significant 
penalties for submitting false statements andinformation or omitting 
required statements and information, includingthe possibility of fine or 
imprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of aNOX 
Budget source or a NOX Budget unit only ifthe submission has 
been made, signed, and certified in

[[Page 703]]

accordancewith paragraph (e)(1) of this section.



Sec. 96.11  Alternate NOX authorized account representative.

    (a) An account certificate of representation may designate one 
andonly one alternate NOX authorized account 
representativewho may act on behalf of the NOX authorized 
accountrepresentative. The agreement by which the alternate 
NOXauthorized account representative is selected shall 
include aprocedure for authorizing the alternate NOX 
authorizedaccount representative to act in lieu of the 
NOXauthorized account representative.
    (b) Upon receipt by the Administrator of a complete 
accountcertificate of representation under Sec. 96.13, 
anyrepresentation, action, inaction, or submission by the 
alternateNOX authorized account representative shall be 
deemed tobe a representation, action, inaction, or submission by 
theNOX authorized account representative.
    (c) Except in this section and Sec. Sec. 96.10(a),96.12, 96.13, and 
96.51, whenever the term ``NOXauthorized account 
representative'' is used in this part, theterm shall be construed to 
include the alternate NOXauthorized account representative.



Sec. 96.12  Changing the NOX authorized account representative andthe alternate NOX authorized account representative;changes in the owners and operators.

    (a) Changing the NOX authorized accountrepresentative. 
The NOX authorized accountrepresentative may be changed at 
any time upon receipt by theAdministrator of a superseding complete 
account certificate ofrepresentation under Sec. 96.13. Notwithstanding 
any suchchange, all representations, actions, inactions, and submissions 
bythe previous NOX authorized account representative priorto 
the time and date when the Administrator receives the supersedingaccount 
certificate of representation shall be binding on the newNOX 
authorized account representative and the owners andoperators of the 
NOX Budget source and the NOXBudget units at the 
source.
    (b) Changing the alternate NOX authorized 
accountrepresentative. The alternate NOX authorized 
accountrepresentative may be changed at any time upon receipt by 
theAdministrator of a superseding complete account certificate 
ofrepresentation under Sec. 96.13. Notwithstanding any suchchange, all 
representations, actions, inactions, and submissions bythe previous 
alternate NOX authorized accountrepresentative prior to the 
time and date when the Administratorreceives the superseding account 
certificate of representation shallbe binding on the new alternate 
NOX authorized accountrepresentative and the owners and 
operators of the NOXBudget source and the NOX 
Budget units at the source.
    (c) Changes in the owners and operators. (1) In the event anew owner 
or operator of a NOX Budget source or aNOX Budget 
unit is not included in the list of owners andoperators submitted in the 
account certificate of representation, suchnew owner or operator shall 
be deemed to be subject to and bound bythe account certificate of 
representation, the representations,actions, inactions, and submissions 
of the NOX authorizedaccount representative and any alternate 
NOX authorizedaccount representative of the source or unit, 
and the decisions,orders, actions, and inactions of the permitting 
authority or theAdministrator, as if the new owner or operator were 
included in suchlist.
    (2) Within 30 days following any change in the owners andoperators 
of a NOX Budget source or a NOXBudget unit, 
including the addition of a new owner or operator, theNOX 
authorized account representative or alternateNOX authorized 
account representative shall submit arevision to the account certificate 
of representation amending thelist of owners and operators to include 
the change.



Sec. 96.13  Account certificate of representation.

    (a) A complete account certificate of representation for 
aNOX authorized account representative or an 
alternateNOX authorized account representative shall include 
thefollowing elements in a format prescribed by the Administrator:
    (1) Identification of the NOX Budget source and 
eachNOX Budget unit at

[[Page 704]]

the source for which the accountcertificate of representation is 
submitted.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the NOXauthorized 
account representative and any alternate NOXauthorized 
account representative.
    (3) A list of the owners and operators of the NOXBudget 
source and of each NOX Budget unit at the source.
    (4) The following certification statement by the 
NOXauthorized account representative and any alternate 
NOXauthorized account representative: ``I certify that I 
wasselected as the NOX authorized account representative 
oralternate NOX authorized account representative, 
asapplicable, by an agreement binding on the owners and operators of 
theNOX Budget source and each NOX Budget unit 
atthe source. I certify that I have all the necessary authority to 
carryout my duties and responsibilities under the NOX 
BudgetTrading Program on behalf of the owners and operators of 
theNOX Budget source and of each NOX Budget unitat 
the source and that each such owner and operator shall be fullybound by 
my representations, actions, inactions, or submissions and byany 
decision or order issued to me by the permitting authority, 
theAdministrator, or a court regarding the source or unit.''
    (5) The signature of the NOX authorized 
accountrepresentative and any alternate NOX authorized 
accountrepresentative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
accountcertificate of representation shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.



Sec. 96.14  Objections concerning the NOX authorized accountrepresentative.

    (a) Once a complete account certificate of representation underSec. 
96.13 has been submitted and received, the permittingauthority and the 
Administrator will rely on the account certificateof representation 
unless and until a superseding complete accountcertificate of 
representation under Sec. 96.13 is receivedby the Administrator.
    (b) Except as provided in Sec. 96.12(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission of the NOXauthorized account 
representative shall affect any representation,action, inaction, or 
submission of the NOX authorizedaccount representative or the 
finality of any decision or order by thepermitting authority or the 
Administrator under the NOXBudget Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of 
anyNOX authorized account representative, including 
privatelegal disputes concerning the proceeds of NOX 
allowancetransfers.



                            Subpart C_Permits



Sec. 96.20  General NOX Budget trading program permit requirements.

    (a) For each NOX Budget source required to have 
afederally enforceable permit, such permit shall include aNOX 
Budget permit administered by the permittingauthority.
    (1) For NOX Budget sources required to have a title 
Voperating permit, the NOX Budget portion of the title 
Vpermit shall be administered in accordance with the 
permittingauthority's title V operating permits regulations promulgated 
underpart 70 or 71 of this chapter, except as provided otherwise by 
thissubpart or subpart I of this part. The applicable provisions of 
suchtitle V operating permits regulations shall include, but are 
notlimited to, those provisions addressing operating permit 
applications,operating permit application shield, operating permit 
duration,operating permit shield, operating permit issuance, operating 
permitrevision and reopening, public participation, State review, and 
reviewby the Administrator.
    (2) For NOX Budget sources required to have a non-title V 
permit, the NOX

[[Page 705]]

Budget portion of the non-title V permit shall be administered in 
accordance with the permittingauthority's regulations promulgated to 
administer non-title V permits,except as provided otherwise by this 
subpart or subpart I of thispart. The applicable provisions of such non-
title V permitsregulations may include, but are not limited to, 
provisions addressingpermit applications, permit application shield, 
permit duration,permit shield, permit issuance, permit revision and 
reopening, publicparticipation, State review, and review by the 
Administrator.
    (b) Each NOX Budget permit (including a draft orproposed 
NOX Budget permit, if applicable) shall containall applicable 
NOX Budget Trading Program requirements andshall be a 
complete and segregable portion of the permit underparagraph (a) of this 
section.



Sec. 96.21  Submission of NOX Budget permit applications.

    (a) Duty to apply. The NOX authorized 
accountrepresentative of any NOX Budget source required to 
have afederally enforceable permit shall submit to the permitting 
authoritya complete NOX Budget permit application underSec. 
96.22 by the applicable deadline in paragraph (b) ofthis section.
    (b)(1) For NOX Budget sources required to have a titleV 
operating permit:
    (i) For any source, with one or more NOX Budget 
unitsunder Sec. 96.4 that commence operation before January 1,2000, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 96.22 covering such 
NOX Budget units to thepermitting authority at least 18 
months (or such lesser time providedunder the permitting authority's 
title V operating permits regulationsfor final action on a permit 
application) before May 1, 2003.
    (ii) For any source, with any NOX Budget unit underSec. 
96.4 that commences operation on or after January 1,2000, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 96.22 covering such 
NOX Budget unit to thepermitting authority at least 18 months 
(or such lesser time providedunder the permitting authority's title V 
operating permits regulationsfor final action on a permit application) 
before the later of May 1,2003 or the date on which the NOX 
Budget unit commencesoperation.
    (2) For NOX Budget sources required to have a non-title V 
permit:
    (i) For any source, with one or more NOX Budget 
unitsunder Sec. 96.4 that commence operation before January 1,2000, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 96.22 covering such 
NOX Budget units to thepermitting authority at least 18 
months (or such lesser time providedunder the permitting authority's 
non-title V permits regulations forfinal action on a permit application) 
before May 1, 2003.
    (ii) For any source, with any NOX Budget unit underSec. 
96.4 that commences operation on or after January 1,2000, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 96.22 covering such 
NOX Budget unit to thepermitting authority at least 18 months 
(or such lesser time providedunder the permitting authority's non-title 
V permits regulations forfinal action on a permit application) before 
the later of May 1, 2003or the date on which the NOX Budget 
unit commencesoperation.
    (c) Duty to reapply. (1) For a NOX Budget sourcerequired 
to have a title V operating permit, the NOXauthorized account 
representative shall submit a completeNOX Budget permit 
application under Sec. 96.22for the NOX Budget source 
covering the NOXBudget units at the source in accordance with 
the permittingauthority's title V operating permits regulations 
addressing operatingpermit renewal.
    (2) For a NOX Budget source required to have a non-title 
V permit, the NOX authorized account representativeshall 
submit a complete NOX Budget permit applicationunder Sec. 
96.22 for the NOX Budget sourcecovering the NOX 
Budget units at the source in accordancewith the permitting authority's 
non-title V permits regulationsaddressing permit renewal.

[[Page 706]]



Sec. 96.22  Information requirements for NOX Budget permitapplications.

    A complete NOX Budget permit application shall includethe 
following elements concerning the NOX Budget sourcefor which 
the application is submitted, in a format prescribed by thepermitting 
authority:
    (a) Identification of the NOX Budget source, 
includingplant name and the ORIS (Office of Regulatory Information 
Systems) orfacility code assigned to the source by the Energy 
InformationAdministration, if applicable;
    (b) Identification of each NOX Budget unit at 
theNOX Budget source and whether it is a NOXBudget 
unit under Sec. 96.4 or under subpart I of this part;
    (c) The standard requirements under Sec. 96.6; and
    (d) For each NOX Budget opt-in unit at theNOX 
Budget source, the following certification statementsby the 
NOX authorized account representative:
    (1) ``I certify that each unit for which this permitapplication is 
submitted under subpart I of this part is not aNOX Budget 
unit under 40 CFR 96.4 and is not covered by aretired unit exemption 
under 40 CFR 96.5 that is in effect.''
    (2) If the application is for an initial NOX Budgetopt-in 
permit, ``I certify that each unit for which this permitapplication is 
submitted under subpart I is currently operating, asthat term is defined 
under 40 CFR 96.2.''



Sec. 96.23  NOX Budget permit contents.

    (a) Each NOX Budget permit (including any draft 
orproposed NOX Budget permit, if applicable) will contain,in 
a format prescribed by the permitting authority, all elementsrequired 
for a complete NOX Budget permit applicationunder Sec. 96.22 
as approved or adjusted by the permittingauthority.
    (b) Each NOX Budget permit is deemed to 
incorporateautomatically the definitions of terms under Sec. 96.2 
and,upon recordation by the Administrator under subparts F, G, or I 
ofthis part, every allocation, transfer, or deduction of aNOX 
allowance to or from the compliance accounts of theNOX Budget 
units covered by the permit or the overdraftaccount of the 
NOX Budget source covered by the permit.



Sec. 96.24  Effective date of initial NOX Budget permit.

    The initial NOX Budget permit covering aNOX 
Budget unit for which a complete NOXBudget permit application 
is timely submitted underSec. 96.21(b) shall become effective by the 
later of:
    (a) May 1, 2003;
    (b) May 1 of the year in which the NOX Budget 
unitcommences operation, if the unit commences operation on or before 
May1 of that year;
    (c) The date on which the NOX Budget unit 
commencesoperation, if the unit commences operation during a control 
period; or
    (d) May 1 of the year following the year in which theNOX 
Budget unit commences operation, if the unit commencesoperation on or 
after October 1 of the year.



Sec. 96.25  NOX Budget permit revisions.

    (a) For a NOX Budget source with a title V 
operatingpermit, except as provided in Sec. 96.23(b), the 
permittingauthority will revise the NOX Budget permit, as 
necessary,in accordance with the permitting authority's title V 
operatingpermits regulations addressing permit revisions.
    (b) For a NOX Budget source with a non-title V 
permit,except as provided in Sec. 96.23(b), the permittingauthority 
will revise the NOX Budget permit, as necessary,in accordance 
with the permitting authority's non-title V permitsregulations 
addressing permit revisions.



                   Subpart D_Compliance Certification



Sec. 96.30  Compliance certification report.

    (a) Applicability and deadline. For each control period inwhich one 
or more NOX Budget units at a source are subjectto the 
NOX Budget emissions limitation, theNOX authorized 
account representative of the source shallsubmit to the permitting 
authority and the Administrator by November30 of that year, a compliance 
certification report for each sourcecovering all such units.
    (b) Contents of report. The NOX authorizedaccount 
representative shall

[[Page 707]]

include in the compliancecertification report under paragraph (a) of 
this section the followingelements, in a format prescribed by the 
Administrator, concerning eachunit at the source and subject to the 
NOX Budget emissionslimitation for the control period covered 
by the report:
    (1) Identification of each NOX Budget unit;
    (2) At the NOX authorized account representative'soption, 
the serial numbers of the NOX allowances that areto be 
deducted from each unit's compliance account underSec. 96.54 for the 
control period;
    (3) At the NOX authorized account representative'soption, 
for units sharing a common stack and having NOXemissions that 
are not monitored separately or apportioned inaccordance with subpart H 
of this part, the percentage of allowancesthat is to be deducted from 
each unit's compliance account underSec. 96.54(e); and
    (4) The compliance certification under paragraph (c) of thissection.
    (c) Compliance certification. In the compliancecertification report 
under paragraph (a) of this section, theNOX authorized 
account representative shall certify, basedon reasonable inquiry of 
those persons with primary responsibility foroperating the source and 
the NOX Budget units at thesource in compliance with the 
NOX Budget Trading Program,whether each NOX Budget 
unit for which the compliancecertification is submitted was operated 
during the calendar yearcovered by the report in compliance with the 
requirements of theNOX Budget Trading Program applicable to 
the unit,including:
    (1) Whether the unit was operated in compliance with 
theNOX Budget emissions limitation;
    (2) Whether the monitoring plan that governs the unit has 
beenmaintained to reflect the actual operation and monitoring of the 
unit,and contains all information necessary to attribute 
NOXemissions to the unit, in accordance with subpart H of 
this part;
    (3) Whether all the NOX emissions from the unit, or 
agroup of units (including the unit) using a common stack, weremonitored 
or accounted for through the missing data procedures andreported in the 
quarterly monitoring reports, including whetherconditional data were 
reported in the quarterly reports in accordancewith subpart H of this 
part. If conditional data were reported, theowner or operator shall 
indicate whether the status of all conditionaldata has been resolved and 
all necessary quarterly reportresubmissions has been made;
    (4) Whether the facts that form the basis for certification 
undersubpart H of this part of each monitor at the unit or a group of 
units(including the unit) using a common stack, or for using an 
exceptedmonitoring method or alternative monitoring method approved 
undersubpart H of this part, if any, has changed; and
    (5) If a change is required to be reported under paragraph (c)(4)of 
this section, specify the nature of the change, the reason for 
thechange, when the change occurred, and how the unit's compliance 
statuswas determined subsequent to the change, including what method 
wasused to determine emissions when a change mandated the need 
formonitor recertification.



Sec. 96.31  Permitting authority's and Administrator's action on compliancecertifications.

    (a) The permitting authority or the Administrator may review 
andconduct independent audits concerning any compliance certification 
orany other submission under the NOX Budget Trading 
Programand make appropriate adjustments of the information in the 
compliancecertifications or other submissions.
    (b) The Administrator may deduct NOX allowances fromor 
transfer NOX allowances to a unit's compliance accountor a 
source's overdraft account based on the information in thecompliance 
certifications or other submissions, as adjusted underparagraph (a) of 
this section.



                   Subpart E_NOX Allowance Allocations



Sec. 96.40  State trading program budget.

    The State trading program budget allocated by the 
permittingauthority under Sec. 96.42 for a control period will

[[Page 708]]

equal the total number of tons of NOX emissionsapportioned to 
the NOX Budget units underSec. 96.4 in the State for the 
control period, as determinedby the applicable, approved State 
implementation plan.



Sec. 96.41  Timing requirements for NOX allowance allocations.

    (a) By September 30, 1999, the permitting authority will submit 
tothe Administrator the NOX allowance allocations, 
inaccordance with Sec. 96.42, for the control periods in 2003,2004, and 
2005.
    (b) By April 1, 2003 and April 1 of each year thereafter, 
thepermitting authority will submit to the Administrator 
theNOX allowance allocations, in accordance withSec. 96.42, 
for the control period in the year that is threeyears after the year of 
the applicable deadline for submission underthis paragraph (b). If the 
permitting authority fails to submit to theAdministrator the 
NOX allowance allocations in accordancewith this paragraph 
(b), the Administrator will allocate, for theapplicable control period, 
the same number of NOXallowances as were allocated for the 
preceding control period.
    (c) By April 1, 2004 and April 1 of each year thereafter, 
thepermitting authority will submit to the Administrator 
theNOX allowance allocations, in accordance withSec. 96.42, 
for any NOX allowances remaining inthe allocation set-aside 
for the prior control period.



Sec. 96.42  NOX allowance allocations.

    (a)(1) The heat input (in mmBtu) used for calculatingNOX 
allowance allocations for each NOX Budgetunit under Sec. 
96.4 will be:
    (i) For a NOX allowance allocation underSec. 96.41(a), 
the average of the two highest amounts of theunit's heat input for the 
control periods in 1995, 1996, and 1997 ifthe unit is under Sec. 
96.4(a)(1) or the control period in1995 if the unit is under Sec. 
96.4(a)(2); and
    (ii) For a NOX allowance allocation underSec. 96.41(b), 
the unit's heat input for the control periodin the year that is four 
years before the year for which theNOX allocation is being 
calculated.
    (2) The unit's total heat input for the control period in eachyear 
specified under paragraph (a)(1) of this section will bedetermined in 
accordance with part 75 of this chapter if theNOX Budget unit 
was otherwise subject to the requirementsof part 75 of this chapter for 
the year, or will be based on the bestavailable data reported to the 
permitting authority for the unit ifthe unit was not otherwise subject 
to the requirements of part 75 ofthis chapter for the year.
    (b) For each control period under Sec. 96.41, thepermitting 
authority will allocate to all NOX Budget unitsunder Sec. 
96.4(a)(1) in the State that commenced operationbefore May 1 of the 
period used to calculate heat input underparagraph (a)(1) of this 
section, a total number of NOXallowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percentthereafter, of the tons of 
NOX emissions in the Statetrading program budget apportioned 
to electric generating units underSec. 96.40 in accordance with the 
following procedures:
    (1) The permitting authority will allocate NOXallowances 
to each NOX Budget unit underSec. 96.4(a)(1) in an amount 
equaling 0.15 lb/mmBtumultiplied by the heat input determined under 
paragraph (a) of thissection, rounded to the nearest whole 
NOX allowance asappropriate.
    (2) If the initial total number of NOX 
allowancesallocated to all NOX Budget units underSec. 
96.4(a)(1) in the State for a control period underparagraph (b)(1) of 
this section does not equal 95 percent in 2003,2004, and 2005, or 98 
percent thereafter, of the number of tons ofNOX emissions in 
the State trading program budgetapportioned to electric generating 
units, the permitting authoritywill adjust the total number of 
NOX allowances allocatedto all such NOX Budget 
units for the control period underparagraph (b)(1) of this section so 
that the total number ofNOX allowances allocated equals 95 
percent in 2003, 2004,and 2005, or 98 percent thereafter, of the number 
of tons ofNOX emissions in the State trading program 
budgetapportioned to electric generating units. This adjustment will be 
madeby: multiplying each unit's allocation by 95 percent in 2003, 
2004,and 2005, or 98 percent thereafter, of the number of tons 
ofNOX emissions in the

[[Page 709]]

State trading program budgetapportioned to electric generating units 
divided by the total numberof NOX allowances allocated under 
paragraph (b)(1) of thissection, and rounding to the nearest whole 
NOX allowanceas appropriate.
    (c) For each control period under Sec. 96.41, thepermitting 
authority will allocate to all NOX Budget unitsunder Sec. 
96.4(a)(2) in the State that commenced operationbefore May 1 of the 
period used to calculate heat input underparagraph (a)(1) of this 
section, a total number of NOXallowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percentthereafter, of the tons of 
NOX emissions in the Statetrading program budget apportioned 
to non-electric generating unitsunder Sec. 96.40 in accordance with the 
followingprocedures:
    (1) The permitting authority will allocate NOXallowances 
to each NOX Budget unit underSec. 96.4(a)(2) in an amount 
equaling 0.17 lb/mmBtumultiplied by the heat input determined under 
paragraph (a) of thissection, rounded to the nearest whole 
NOX allowance asappropriate.
    (2) If the initial total number of NOX 
allowancesallocated to all NOX Budget units underSec. 
96.4(a)(2) in the State for a control period underparagraph (c)(1) of 
this section does not equal 95 percent in 2003,2004, and 2005, or 98 
percent thereafter, of the number of tons ofNOX emissions in 
the State trading program budgetapportioned to non-electric generating 
units, the permitting authoritywill adjust the total number of 
NOX allowances allocatedto all such NOX Budget 
units for the control period underparagraph (c)(1) of this section so 
that the total number ofNOX allowances allocated equals 95 
percent in 2003, 2004,and 2005, or 98 percent thereafter, of the number 
of tons ofNOX emissions in the State trading program 
budgetapportioned to non-electric generating units. This adjustment will 
bemade by: multiplying each unit's allocation by 95 percent in 
2003,2004, and 2005, or 98 percent thereafter, of the number of tons 
ofNOX emissions in the State trading program 
budgetapportioned to non-electric generating units divided by the 
totalnumber of NOX allowances allocated under paragraph 
(c)(1)of this section, and rounding to the nearest whole 
NOXallowance as appropriate.
    (d) For each control period under Sec. 96.41, thepermitting 
authority will allocate NOX allowances toNOX 
Budget units under Sec. 96.4 in the Statethat commenced operation, or 
is projected to commence operation, on orafter May 1 of the period used 
to calculate heat input under paragraph(a)(1) of this section, in 
accordance with the following procedures:
    (1) The permitting authority will establish one allocation set-aside 
for each control period. Each allocation set-aside will beallocated 
NOX allowances equal to 5 percent in 2003, 2004,and 2005, or 
2 percent thereafter, of the tons of NOXemissions in the 
State trading program budget underSec. 96.40, rounded to the nearest 
whole NOXallowance as appropriate.
    (2) The NOX authorized account representative of 
aNOX Budget unit under paragraph (d) of this section 
maysubmit to the permitting authority a request, in writing or in 
aformat specified by the permitting authority, to be 
allocatedNOX allowances for no more than five consecutive 
controlperiods under Sec. 96.41, starting with the control periodduring 
which the NOX Budget unit commenced, or isprojected to 
commence, operation and ending with the control periodpreceding the 
control period for which it will receive an allocationunder paragraph 
(b) or (c) of this section. The NOXallowance allocation 
request must be submitted prior to May 1 of thefirst control period for 
which the NOX allowanceallocation is requested and after the 
date on which the permittingauthority issues a permit to construct the 
NOX Budgetunit.
    (3) In a NOX allowance allocation request underparagraph 
(d)(2) of this section, the NOX authorizedaccount 
representative for units under Sec. 96.4(a)(1) mayrequest for a control 
period NOX allowances in an amountthat does not exceed 0.15 
lb/mmBtu multiplied by the NOXBudget unit's maximum design 
heat input (in mmBtu/hr) multiplied bythe number of hours remaining in 
the control period starting with thefirst day in the control period on 
which the unit operated or isprojected to operate.

[[Page 710]]

    (4) In a NOX allowance allocation request underparagraph 
(d)(2) of this section, the NOX authorizedaccount 
representative for units under Sec. 96.4(a)(2) mayrequest for a control 
period NOX allowances in an amountthat does not exceed 0.17 
lb/mmBtu multiplied by the NOXBudget unit's maximum design 
heat input (in mmBtu/hr) multiplied bythe number of hours remaining in 
the control period starting with thefirst day in the control period on 
which the unit operated or isprojected to operate.
    (5) The permitting authority will review, and allocateNOX 
allowances pursuant to, each NOX allowanceallocation request 
under paragraph (d)(2) of this section in the orderthat the request is 
received by the permitting authority.
    (i) Upon receipt of the NOX allowance allocationrequest, 
the permitting authority will determine whether, and willmake any 
necessary adjustments to the request to ensure that, forunits under 
Sec. 96.4(a)(1), the control period and thenumber of allowances 
specified are consistent with the requirements ofparagraphs (d)(2) and 
(3) of this section and, for units underSec. 96.4(a)(2), the control 
period and the number ofallowances specified are consistent with the 
requirements ofparagraphs (d)(2) and (4) of this section.
    (ii) If the allocation set-aside for the control period for 
whichNOX allowances are requested has an amount 
ofNOX allowances not less than the number requested 
(asadjusted under paragraph (d)(5)(i) of this section), the 
permittingauthority will allocate the amount of the NOX 
allowancesrequested (as adjusted under paragraph (d)(5)(i) of this 
section) tothe NOX Budget unit.
    (iii) If the allocation set-aside for the control period for 
whichNOX allowances are requested has a smaller amount 
ofNOX allowances than the number requested (as adjustedunder 
paragraph (d)(5)(i) of this section), the permitting authoritywill deny 
in part the request and allocate only the remaining numberof 
NOX allowances in the allocation set-aside to 
theNOX Budget unit.
    (iv) Once an allocation set-aside for a control period has 
beendepleted of all NOX allowances, the permitting 
authoritywill deny, and will not allocate any NOX 
allowancespursuant to, any NOX allowance allocation request 
underwhich NOX allowances have not already been allocated 
forthe control period.
    (6) Within 60 days of receipt of a NOX 
allowanceallocation request, the permitting authority will take 
appropriateaction under paragraph (d)(5) of this section and notify 
theNOX authorized account representative that submitted 
therequest and the Administrator of the number of 
NOXallowances (if any) allocated for the control period to 
theNOX Budget unit.
    (e) For a NOX Budget unit that is allocatedNOX 
allowances under paragraph (d) of this section for acontrol period, the 
Administrator will deduct NOXallowances under Sec. 96.54(b) 
or (e) to account for theactual utilization of the unit during the 
control period. TheAdministrator will calculate the number of 
NOX allowancesto be deducted to account for the unit's actual 
utilization using thefollowing formulas and rounding to the nearest 
whole NOXallowance as appropriate, provided that the number 
of NOXallowances to be deducted shall be zero if the number 
calculated isless than zero:

NOX allowances deducted for actual utilization forunits under 
    Sec. 96.4(a)(1) = (Unit's NOXallowances allocated for 
    control period)-(Unit's actual controlperiod utilization x 0.15 lb/
    mmBtu); and
NOX allowances deducted for actual utilization forunits under 
    Sec. 96.4(a)(2) = (Unit's NOXallowances allocated for 
    control period)-(Unit's actual controlperiod utilization x 0.17 lb/
    mmBtu)

Where:

``Unit's NOX allowances allocated for controlperiod'' is the 
number of NOX allowances allocatedto the unit for the control 
period under paragraph (d) of thissection; and
``Unit's actual control period utilization'' is theutilization (in 
mmBtu), as defined in Sec. 96.2, of the unitduring the control period.

    (f) After making the deductions for compliance underSec. 96.54(b) 
or (e) for a control period, the Administratorwill notify the permitting 
authority whether any NOXallowances remain in the

[[Page 711]]

allocation set-aside for the controlperiod. The permitting authority 
will allocate any suchNOX allowances to the NOX 
Budget units in theState using the following formula and rounding to the 
nearest wholeNOX allowance as appropriate:

Unit's share of NOX allowances remaining in allocationset-
    aside = Total NOX allowances remaining in allocationset-
    aside x (Unit's NOX allowance allocation/ State trading 
    program budget excluding allocation set-aside)

Where:

``Total NOX allowances remaining in allocationset-aside'' is 
the total number of NOX allowancesremaining in the allocation 
set-aside for the control period to whichthe allocation set-aside 
applies;
``Unit's NOX allowance allocation'' is thenumber of 
NOX allowances allocated under paragraph (b) or(c) of this 
section to the unit for the control period to which theallocation set-
aside applies; and
``State trading program budget excluding allocation set-aside'' is the 
State trading program budget underSec. 96.40 for the control period to 
which the allocationset-aside applies multiplied by 95 percent if the 
control period is in2003, 2004, or 2005 or 98 percent if the control 
period is in any yearthereafter, rounded to the nearest whole 
NOX allowance asappropriate.

[63 FR 57514, Oct. 27, 1998, as amended at 63 FR 71225, Dec.24, 1998]



                 Subpart F_NOX Allowance Tracking System



Sec. 96.50  NOX Allowance Tracking System accounts.

    (a) Nature and function of compliance accounts and 
overdraftaccounts. Consistent with Sec. 96.51(a), theAdministrator will 
establish one compliance account for eachNOX Budget unit and 
one overdraft account for each sourcewith one or more NOX 
Budget units. Allocations ofNOX allowances pursuant to 
subpart E of this part orSec. 96.88 and deductions or transfers of 
NOXallowances pursuant to Sec. 96.31, Sec. 96.54,Sec. 
96.56, subpart G of this part, or subpart I of thispart will be recorded 
in the compliance accounts or overdraft accountsin accordance with this 
subpart.
    (b) Nature and function of general accounts. Consistent withSec. 
96.51(b), the Administrator will establish, uponrequest, a general 
account for any person. Transfers of allowancespursuant to subpart G of 
this part will be recorded in the generalaccount in accordance with this 
subpart.



Sec. 96.51  Establishment of accounts.

    (a) Compliance accounts and overdraft accounts. Upon receiptof a 
complete account certificate of representation underSec. 96.13, the 
Administrator will establish:
    (1) A compliance account for each NOX Budget unit 
forwhich the account certificate of representation was submitted; and
    (2) An overdraft account for each source for which the 
accountcertificate of representation was submitted and that has two or 
moreNOX Budget units.
    (b) General accounts. (1) Any person may apply to open ageneral 
account for the purpose of holding and transferringallowances. A 
complete application for a general account shall besubmitted to the 
Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (i) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of theNOX 
authorized account representative and any alternateNOX 
authorized account representative;
    (ii) At the option of the NOX authorized 
accountrepresentative, organization name and type of organization;
    (iii) A list of all persons subject to a binding agreement for 
theNOX authorized account representative or any 
alternateNOX authorized account representative to represent 
theirownership interest with respect to the allowances held in the 
generalaccount;
    (iv) The following certification statement by the 
NOXauthorized account representative and any alternate 
NOXauthorized account representative: ``I certify that I 
wasselected as the NOX authorized account representative 
orthe NOX alternate authorized account representative, 
asapplicable, by an agreement that is binding on all persons who have 
anownership interest with respect to allowances held in the 
generalaccount. I certify that I have all the necessary authority to 
carryout my duties and responsibilities

[[Page 712]]

under the NOXBudget Trading Program on behalf of such persons 
and that each suchperson shall be fully bound by my representations, 
actions, inactions,or submissions and by any order or decision issued to 
me by theAdministrator or a court regarding the general account.''
    (v) The signature of the NOX authorized 
accountrepresentative and any alternate NOX authorized 
accountrepresentative and the dates signed.
    (vi) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
accountcertificate of representation shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Upon receipt by the Administrator of a complete applicationfor a 
general account under paragraph (b)(1) of this section:
    (i) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (ii) The NOX authorized account representative and 
anyalternate NOX authorized account representative for 
thegeneral account shall represent and, by his or her 
representations,actions, inactions, or submissions, legally bind each 
person who hasan ownership interest with respect to NOX 
allowances heldin the general account in all matters pertaining to 
theNOX Budget Trading Program, not withstanding any 
agreementbetween the NOX authorized account representative or 
anyalternate NOX authorized account representative and 
suchperson. Any such person shall be bound by any order or decision 
issuedto the NOX authorized account representative or 
anyalternate NOX authorized account representative by 
theAdministrator or a court regarding the general account.
    (iii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the NOX 
authorizedaccount representative or any alternate NOX 
authorizedaccount representative for the persons having an ownership 
interestwith respect to NOX allowances held in the 
generalaccount. Each such submission shall include the 
followingcertification statement by the NOX authorized 
accountrepresentative or any alternate NOX authorized 
accountrepresentative any: ``I am authorized to make this submission 
onbehalf of the persons having an ownership interest with respect to 
theNOX allowances held in the general account. I certifyunder 
penalty of law that I have personally examined, and am familiarwith, the 
statements and information submitted in this document andall its 
attachments. Based on my inquiry of those individuals withprimary 
responsibility for obtaining the information, I certify thatthe 
statements and information are to the best of my knowledge andbelief 
true, accurate, and complete. I am aware that there aresignificant 
penalties for submitting false statements and informationor omitting 
required statements and information, including thepossibility of fine or 
imprisonment.''
    (iv) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(iii) of thissection.
    (3)(i) An application for a general account may designate one 
andonly one NOX authorized account representative and one 
andonly one alternate NOX authorized account 
representativewho may act on behalf of the NOX authorized 
accountrepresentative. The agreement by which the alternate 
NOXauthorized account representative is selected shall 
include aprocedure for authorizing the alternate NOX 
authorizedaccount representative to act in lieu of the 
NOXauthorized account representative.
    (ii) Upon receipt by the Administrator of a complete applicationfor 
a general account under paragraph (b)(1) of this section, 
anyrepresentation, action, inaction, or submission by any 
alternateNOX authorized account representative shall be 
deemed tobe a representation, action, inaction, or submission by 
theNOX authorized account representative.
    (4)(i) The NOX authorized account representative for 
ageneral account

[[Page 713]]

may be changed at any time upon receipt by theAdministrator of a 
superseding complete application for a generalaccount under paragraph 
(b)(1) of this section. Notwithstanding anysuch change, all 
representations, actions, inactions, and submissionsby the previous 
NOX authorized account representativeprior to the time and 
date when the Administrator receives thesuperseding application for a 
general account shall be binding on thenew NOX authorized 
account representative and the personswith an ownership interest with 
respect to the allowances in thegeneral account.
    (ii) The alternate NOX authorized accountrepresentative 
for a general account may be changed at any time uponreceipt by the 
Administrator of a superseding complete application fora general account 
under paragraph (b)(1) of this section.Notwithstanding any such change, 
all representations, actions,inactions, and submissions by the previous 
alternate NOXauthorized account representative prior to the 
time and date when theAdministrator receives the superseding application 
for a generalaccount shall be binding on the new alternate 
NOXauthorized account representative and the persons with an 
ownershipinterest with respect to the allowances in the general account.
    (iii)(A) In the event a new person having an ownership interestwith 
respect to NOX allowances in the general account isnot 
included in the list of such persons in the account certificate 
ofrepresentation, such new person shall be deemed to be subject to 
andbound by the account certificate of representation, 
therepresentation, actions, inactions, and submissions of 
theNOX authorized account representative and any 
alternateNOX authorized account representative of the source 
orunit, and the decisions, orders, actions, and inactions of 
theAdministrator, as if the new person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to NOX allowances in 
thegeneral account, including the addition of persons, theNOX 
authorized account representative or any alternateNOX 
authorized account representative shall submit arevision to the 
application for a general account amending the list ofpersons having an 
ownership interest with respect to theNOX allowances in the 
general account to include thechange.
    (5)(i) Once a complete application for a general account 
underparagraph (b)(1) of this section has been submitted and received, 
theAdministrator will rely on the application unless and until 
asuperseding complete application for a general account under 
paragraph(b)(1) of this section is received by the Administrator.
    (ii) Except as provided in paragraph (b)(4) of this section, 
noobjection or other communication submitted to the 
Administratorconcerning the authorization, or any representation, 
action, inaction,or submission of the NOX authorized account 
representativeor any alternate NOX authorized account 
representative fora general account shall affect any representation, 
action, inaction,or submission of the NOX authorized account 
representativeor any alternate NOX authorized account 
representative orthe finality of any decision or order by the 
Administrator under theNOX Budget Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the NOX authorized accountrepresentative or any 
alternate NOX authorized accountrepresentative for a general 
account, including private legal disputesconcerning the proceeds of 
NOX allowance transfers.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.



Sec. 96.52  NOX Allowance Tracking System responsibilities ofNOX authorized account representative.

    (a) Following the establishment of a NOX 
AllowanceTracking System account, all submissions to the 
Administratorpertaining to the account, including, but not limited to, 
submissionsconcerning the deduction or transfer of NOX 
allowances inthe account, shall be made only by the NOX

[[Page 714]]

authorizedaccount representative for the account.
    (b) Authorized account representative identification. 
TheAdministrator will assign a unique identifying number to 
eachNOX authorized account representative.



Sec. 96.53  Recordation of NOX allowance allocations.

    (a) The Administrator will record the NOX allowancesfor 
2003 in the NOX Budget units' compliance accounts andthe 
allocation set-asides, as allocated under subpart E of this part.The 
Administrator will also record the NOX allowancesallocated 
under Sec. 96.88(a)(1) for each NOXBudget opt-in source in 
its compliance account.
    (b) Each year, after the Administrator has made all deductionsfrom a 
NOX Budget unit's compliance account and theoverdraft account 
pursuant to Sec. 96.54, the Administratorwill record NOX 
allowances, as allocated to the unit undersubpart E of this part or 
under Sec. 96.88(a)(2), in thecompliance account for the year after the 
last year for whichallowances were previously allocated to the 
compliance account. Eachyear, the Administrator will also record 
NOX allowances,as allocated under subpart E of this part, in 
the allocation set-asidefor the year after the last year for which 
allowances were previouslyallocated to an allocation set-aside.
    (c) Serial numbers for allocated NOXallowances. When 
allocating NOX allowances to andrecording them in an account, 
the Administrator will assign eachNOX allowance a unique 
identification number that willinclude digits identifying the year for 
which the NOXallowance is allocated.



Sec. 96.54  Compliance.

    (a) NOX allowance transfer deadline. TheNOX 
allowances are available to be deducted for compliancewith a unit's 
NOX Budget emissions limitation for acontrol period in a 
given year only if the NOX allowances:
    (1) Were allocated for a control period in a prior year or thesame 
year; and
    (2) Are held in the unit's compliance account, or the 
overdraftaccount of the source where the unit is located, as of 
theNOX allowance transfer deadline for that control period 
orare transferred into the compliance account or overdraft account by 
aNOX allowance transfer correctly submitted for 
recordationunder Sec. 96.60 by the NOX allowance 
transferdeadline for that control period.
    (b) Deductions for compliance. (1) Following therecordation, in 
accordance with Sec. 96.61, ofNOX allowance transfers 
submitted for recordation in theunit's compliance account or the 
overdraft account of the source wherethe unit is located by the 
NOX allowance transfer deadlinefor a control period, the 
Administrator will deduct NOXallowances available under 
paragraph (a) of this section to cover theunit's NOX 
emissions (as determined in accordance withsubpart H of this part), or 
to account for actual utilization underSec. 96.42(e), for the control 
period:
    (i) From the compliance account; and
    (ii) Only if no more NOX allowances available 
underparagraph (a) of this section remain in the compliance account, 
fromthe overdraft account. In deducting allowances for units at the 
sourcefrom the overdraft account, the Administrator will begin with the 
unithaving the compliance account with the lowest 
NOXAllowance Tracking System account number and end with the 
unit havingthe compliance account with the highest NOX 
AllowanceTracking System account number (with account numbers sorted 
beginningwith the left-most character and ending with the right-most 
characterand the letter characters assigned values in alphabetical order 
andless than all numeric characters).
    (2) The Administrator will deduct NOX allowances 
firstunder paragraph (b)(1)(i) of this section and then under paragraph 
(b)(1)(ii) of this section:
    (i) Until the number of NOX allowances deducted forthe 
control period equals the number of tons of NOXemissions, 
determined in accordance with subpart H of this part, fromthe unit for 
the control period for which compliance is beingdetermined, plus the 
number of NOX allowances required fordeduction to account for 
actual utilization underSec. 96.42(e) for the control period; or

[[Page 715]]

    (ii) Until no more NOX allowances available 
underparagraph (a) of this section remain in the respective account.
    (c)(1) Identification of NOX allowances byserial number. 
The NOX authorized accountrepresentative for each compliance 
account may identify by serialnumber the NOX allowances to be 
deducted from the unit'scompliance account under paragraph (b), (d), or 
(e) of this section.Such identification shall be made in the compliance 
certificationreport submitted in accordance with Sec. 96.30.
    (2) First-in, first-out. The Administrator will deductNOX 
allowances for a control period from the complianceaccount, in the 
absence of an identification or in the case of apartial identification 
of NOX allowances by serial numberunder paragraph (c)(1) of 
this section, or the overdraft account on afirst-in, first-out (FIFO) 
accounting basis in the following order:
    (i) Those NOX allowances that were allocated for 
thecontrol period to the unit under subpart E or I of this part;
    (ii) Those NOX allowances that were allocated for 
thecontrol period to any unit and transferred and recorded in the 
accountpursuant to subpart G of this part, in order of their date 
ofrecordation;
    (iii) Those NOX allowances that were allocated for aprior 
control period to the unit under subpart E or I of this part;and
    (iv) Those NOX allowances that were allocated for aprior 
control period to any unit and transferred and recorded in theaccount 
pursuant to subpart G of this part, in order of their date 
ofrecordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section, theAdministrator 
will deduct from the unit's compliance account or theoverdraft account 
of the source where the unit is located a number ofNOX 
allowances, allocated for a control period after thecontrol period in 
which the unit has excess emissions, equal to threetimes the number of 
the unit's excess emissions.
    (2) If the compliance account or overdraft account does notcontain 
sufficient NOX allowances, the Administrator willdeduct the 
required number of NOX allowances, regardlessof the control 
period for which they were allocated, wheneverNOX allowances 
are recorded in either account.
    (3) Any allowance deduction required under paragraph (d) of 
thissection shall not affect the liability of the owners and operators 
ofthe NOX Budget unit for any fine, penalty, or assessment,or 
their obligation to comply with any other remedy, for the sameviolation, 
as ordered under the CAA or applicable State law. Thefollowing 
guidelines will be followed in assessing fines, penalties orother 
obligations:
    (i) For purposes of determining the number of days of violation,if a 
NOX Budget unit has excess emissions for a controlperiod, 
each day in the control period (153 days) constitutes a day inviolation 
unless the owners and operators of the unit demonstrate thata lesser 
number of days should be considered.
    (ii) Each ton of excess emissions is a separate violation.
    (e) Deductions for units sharing a common stack. In the caseof units 
sharing a common stack and having emissions that are notseparately 
monitored or apportioned in accordance with subpart H ofthis part:
    (1) The NOX authorized account representative of theunits 
may identify the percentage of NOX allowances to bededucted 
from each such unit's compliance account to cover the unit'sshare of 
NOX emissions from the common stack for a controlperiod. Such 
identification shall be made in the compliancecertification report 
submitted in accordance withSec. 96.30.
    (2) Notwithstanding paragraph (b)(2)(i) of this section, 
theAdministrator will deduct NOX allowances for each suchunit 
until the number of NOX allowances deducted equalsthe unit's 
identified percentage (under paragraph (e)(1) of thissection) of the 
number of tons of NOX emissions, asdetermined in accordance 
with subpart H of this part, from the commonstack for the control period 
for which compliance is being determinedor, if no percentage is 
identified, an equal percentage for each suchunit, plus the number of 
allowances required for deduction to account

[[Page 716]]

for actual utilization under Sec. 96.42(e) for thecontrol period.
    (f) The Administrator will record in the appropriate 
complianceaccount or overdraft account all deductions from such an 
accountpursuant to paragraphs (b), (d), or (e) of this section.



Sec. 96.55  Banking.

    (a) NOX allowances may be banked for future use 
ortransfer in a compliance account, an overdraft account, or a 
generalaccount, as follows:
    (1) Any NOX allowance that is held in a 
complianceaccount, an overdraft account, or a general account will 
remain insuch account unless and until the NOX allowance 
isdeducted or transferred under Sec. 96.31,Sec. 96.54, Sec. 96.56, 
subpart G of this part, orsubpart I of this part.
    (2) The Administrator will designate, as a ``banked''NOX 
allowance, any NOX allowance that remainsin a compliance 
account, an overdraft account, or a general accountafter the 
Administrator has made all deductions for a given controlperiod from the 
compliance account or overdraft account pursuant toSec. 96.54.
    (b) Each year starting in 2004, after the Administrator hascompleted 
the designation of banked NOX allowances underparagraph 
(a)(2) of this section and before May 1 of the year, theAdministrator 
will determine the extent to which bankedNOX allowances may 
be used for compliance in the controlperiod for the current year, as 
follows:
    (1) The Administrator will determine the total number of 
bankedNOX allowances held in compliance accounts, 
overdraftaccounts, or general accounts.
    (2) If the total number of banked NOX 
allowancesdetermined, under paragraph (b)(1) of this section, to be held 
incompliance accounts, overdraft accounts, or general accounts is 
lessthan or equal to 10% of the sum of the State trading program 
budgetsfor the control period for the States in which NOX 
Budgetunits are located, any banked NOX allowance may 
bededucted for compliance in accordance with Sec. 96.54.
    (3) If the total number of banked NOX 
allowancesdetermined, under paragraph (b)(1) of this section, to be held 
incompliance accounts, overdraft accounts, or general accounts 
exceeds10% of the sum of the State trading program budgets for the 
controlperiod for the States in which NOX Budget units 
arelocated, any banked allowance may be deducted for compliance 
inaccordance with Sec. 96.54, except as follows:
    (i) The Administrator will determine the following ratio: 
0.10multiplied by the sum of the State trading program budgets for 
thecontrol period for the States in which NOX Budget unitsare 
located and divided by the total number of banked 
NOXallowances determined, under paragraph (b)(1) of this 
section, to beheld in compliance accounts, overdraft accounts, or 
general accounts.
    (ii) The Administrator will multiply the number of 
bankedNOX allowances in each compliance account or 
overdraftaccount. The resulting product is the number of banked 
NOXallowances in the account that may be deducted for 
compliance inaccordance with Sec. 96.54. Any banked 
NOXallowances in excess of the resulting product may be 
deducted forcompliance in accordance with Sec. 96.54, except that, 
ifsuch NOX allowances are used to make a deduction, two 
suchNOX allowances must be deducted for each deduction of 
oneNOX allowance required under Sec. 96.54.
    (c) Any NOX Budget unit may reduce its 
NOXemission rate in the 2001 or 2002 control period, the 
owner oroperator of the unit may request early reduction credits, and 
thepermitting authority may allocate NOX allowances in 2003to 
the unit in accordance with the following requirements.
    (1) Each NOX Budget unit for which the owner oroperator 
requests any early reduction credits under paragraph (c)(4)of this 
section shall monitor NOX emissions in accordancewith subpart 
H of this part starting in the 2000 control period andfor each control 
period for which such early reduction credits arerequested. The unit's 
monitoring system availability shall be not lessthan 90 percent during 
the 2000 control period, and the unit must bein compliance with any 
applicable State or Federal emissions oremissions-related requirements.
    (2) NOX emission rate and heat input under 
paragraphs(c)(3) through (5) of

[[Page 717]]

this section shall be determined inaccordance with subpart H of this 
part.
    (3) Each NOX Budget unit for which the owner oroperator 
requests any early reduction credits under paragraph (c)(4)of this 
section shall reduce its NOX emission rate, foreach control 
period for which early reduction credits are requested,to less than both 
0.25 lb/mmBtu and 80 percent of the unit'sNOX emission rate 
in the 2000 control period.
    (4) The NOX authorized account representative of 
aNOX Budget unit that meets the requirements of 
paragraphs(c)(1)and (3) of this section may submit to the permitting 
authority arequest for early reduction credits for the unit based 
onNOX emission rate reductions made by the unit in thecontrol 
period for 2001 or 2002 in accordance with paragraph (c)(3) ofthis 
section.
    (i) In the early reduction credit request, the 
NOXauthorized account may request early reduction credits for 
suchcontrol period in an amount equal to the unit's heat input for 
suchcontrol period multiplied by the difference between 0.25 lb/mmBtu 
andthe unit's NOX emission rate for such control 
period,divided by 2000 lb/ton, and rounded to the nearest ton.
    (ii) The early reduction credit request must be submitted, in 
aformat specified by the permitting authority, by October 31 of theyear 
in which the NOX emission rate reductions on whichthe request 
is based are made or such later date approved by thepermitting 
authority.
    (5) The permitting authority will allocate NOXallowances, 
to NOX Budget units meeting the requirementsof paragraphs 
(c)(1) and (3) of this section and covered by earlyreduction requests 
meeting the requirements of paragraph (c)(4)(ii) ofthis section, in 
accordance with the following procedures:
    (i) Upon receipt of each early reduction credit request, 
thepermitting authority will accept the request only if the 
requirementsof paragraphs (c)(1), (c)(3), and (c)(4)(ii) of this section 
are metand, if the request is accepted, will make any necessary 
adjustmentsto the request to ensure that the amount of the early 
reductioncredits requested meets the requirement of paragraphs (c)(2) 
and (4)of this section.
    (ii) If the State's compliance supplement pool has an amount 
ofNOX allowances not less than the number of early 
reductioncredits in all accepted early reduction credit requests for 
2001 and2002 (as adjusted under paragraph (c)(5)(i) of this section), 
thepermitting authority will allocate to each NOX Budget 
unitcovered by such accepted requests one allowance for each 
earlyreduction credit requested (as adjusted under paragraph (c)(5)(i) 
ofthis section).
    (iii) If the State's compliance supplement pool has a smalleramount 
of NOX allowances than the number of earlyreduction credits 
in all accepted early reduction credit requests for2001 and 2002 (as 
adjusted under paragraph (c)(5)(i) of this section),the permitting 
authority will allocate NOX allowances toeach NOX 
Budget unit covered by such accepted requestsaccording to the following 
formula:

Unit's allocated early reduction credits = [(Unit's adjusted 
    earlyreduction credits) / (Total adjusted early reduction credits 
    requestedby all units)]x(Available NOX allowances from 
    theState's compliance supplement pool)

where:

``Unit's adjusted early reduction credits'' is thenumber of early 
reduction credits for the unit for 2001 and 2002 inaccepted early 
reduction credit requests, as adjusted under paragraph(c)(5)(i) of this 
section.
``Total adjusted early reduction credits requested by allunits'' is the 
number of early reduction credits for all unitsfor 2001 and 2002 in 
accepted early reduction credit requests, asadjusted under paragraph 
(c)(5)(i) of this section.
``Available NOX allowances from the State'scompliance 
supplement pool'' is the number of NOXallowances in the 
State's compliance supplement pool and available forearly reduction 
credits for 2001 and 2002.

    (6) By May 1, 2003, the permitting authority will submit to 
theAdministrator the allocations of NOX allowances 
determinedunder paragraph (c)(5) of this section. The Administrator will 
recordsuch allocations to the extent that they are consistent with 
therequirements of paragraphs (c)(1) through (5) of this section.

[[Page 718]]

    (7) NOX allowances recorded under paragraph (c)(6) of 
this section may be deducted for compliance underSec. 96.54 for the 
control periods in 2003 or 2004.Notwithstanding paragraph (a) of this 
section, the Administrator willdeduct as retired any NOX 
allowance that is recorded underparagraph (c)(6) of this section and is 
not deducted for compliance inaccordance with Sec. 96.54 for the 
control period in 2003 or2004.
    (8) NOX allowances recorded under paragraph (c)(6) ofthis 
section are treated as banked allowances in 2004 for the purposesof 
paragraphs (a) and (b) of this section.



Sec. 96.56  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any NOX 
AllowanceTracking System account. Within 10 business days of making 
suchcorrection, the Administrator will notify the 
NOXauthorized account representative for the account.



Sec. 96.57  Closing of general accounts.

    (a) The NOX authorized account representative of ageneral 
account may instruct the Administrator to close the account bysubmitting 
a statement requesting deletion of the account from theNOX 
Allowance Tracking System and by correctly submittingfor recordation 
under Sec. 96.60 an allowance transfer ofall NOX allowances 
in the account to one or more otherNOX Allowance Tracking 
System accounts.
    (b) If a general account shows no activity for a period of a yearor 
more and does not contain any NOX allowances, 
theAdministrator may notify the NOX authorized 
accountrepresentative for the account that the account will be closed 
anddeleted from the NOX Allowance Tracking System following20 
business days after the notice is sent. The account will be closedafter 
the 20-day period unless before the end of the 20-day period 
theAdministrator receives a correctly submitted transfer 
ofNOX allowances into the account under Sec. 96.60or a 
statement submitted by the NOX authorized 
accountrepresentative demonstrating to the satisfaction of the 
Administratorgood cause as to why the account should not be closed.



                    Subpart G_NOX Allowance Transfers



Sec. 96.60  Submission of NOX allowance transfers.

    The NOX authorized account representatives 
seekingrecordation of a NOX allowance transfer shall submit 
thetransfer to the Administrator. To be considered correctly 
submitted,the NOX allowance transfer shall include the 
followingelements in a format specified by the Administrator:
    (a) The numbers identifying both the transferor and 
transfereeaccounts;
    (b) A specification by serial number of each NOXallowance 
to be transferred; and
    (c) The printed name and signature of the NOXauthorized 
account representative of the transferor account and thedate signed.



Sec. 96.61  EPA recordation.

    (a) Within 5 business days of receiving a NOXallowance 
transfer, except as provided in paragraph (b) of thissection, the 
Administrator will record a NOX allowancetransfer by moving 
each NOX allowance from the transferoraccount to the 
transferee account as specified by the request,provided that:
    (1) The transfer is correctly submitted underSec. 96.60;
    (2) The transferor account includes each NOX 
allowanceidentified by serial number in the transfer; and
    (3) The transfer meets all other requirements of this part.
    (b) A NOX allowance transfer that is submitted 
forrecordation following the NOX allowance transfer 
deadlineand that includes any NOX allowances allocated for 
acontrol period prior to or the same as the control period to which 
theNOX allowance transfer deadline applies will not 
berecorded until after completion of the process of recordation 
ofNOX allowance allocations in Sec. 96.53(b).
    (c) Where a NOX allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.



Sec. 96.62  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a NOX

[[Page 719]]

allowance transfer underSec. 96.61, the Administrator will notify each 
party to thetransfer. Notice will be given to the NOX 
authorizedaccount representatives of both the transferror and 
transfereeaccounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a NOX allowance transfer that fails to meetthe 
requirements of Sec. 96.61(a), the Administrator willnotify the 
NOX authorized account representatives of bothaccounts 
subject to the transfer of:
    (1) A decision not to record the transfer, and (2) The reasons 
forsuch non-recordation.
    (c) Nothing in this section shall preclude the submission of 
aNOX allowance transfer for recordation followingnotification 
of non-recordation.



                   Subpart H_Monitoring and Reporting



Sec. 96.70  General requirements.

    The owners and operators, and to the extent applicable, 
theNOX authorized account representative of a 
NOXBudget unit, shall comply with the monitoring and 
reportingrequirements as provided in this subpart and in subpart H of 
part 75of this chapter. For purposes of complying with such 
requirements, thedefinitions in Sec. 96.2 and in Sec. 72.2 of 
thischapter shall apply, and the terms ``affected unit,''``designated 
representative,'' and ``continuousemission monitoring system'' (or 
``CEMS'') in part75 of this chapter shall be replaced by the 
terms``NOX Budget unit,'' ``NOXauthorized account 
representative,'' and ``continuousemission monitoring system'' (or 
``CEMS''),respectively, as defined in Sec. 96.2.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each NOX Budgetunit 
must meet the following requirements. These provisions also applyto a 
unit for which an application for a NOX Budget opt-inpermit 
is submitted and not denied or withdrawn, as provided insubpart I of 
this part:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass. This includes all systems required 
tomonitor NOX emission rate, NOX 
concentration,heat input, and flow, in accordance with Sec. Sec. 
75.72and 75.76.
    (2) Install all monitoring systems for monitoring heat input, 
ifrequired under Sec. 96.76 for developing NOXallowance 
allocations.
    (3) Successfully complete all certification tests required 
underSec. 96.71 and meet all other provisions of this subpart andpart 
75 of this chapter applicable to the monitoring systems underparagraphs 
(a)(1) and (2) of this section.
    (4) Record, and report data from the monitoring systems 
underparagraphs (a)(1) and (2) of this section.
    (b) Compliance dates. The owner or operator must meet 
therequirements of paragraphs (a)(1) through (a)(3) of this section on 
orbefore the following dates and must record and report data on andafter 
the following dates:
    (1) NOX Budget units for which the owner or 
operatorintends to apply for early reduction credits underSec. 96.55(d) 
must comply with the requirements of thissubpart by May 1, 2000.
    (2) Except for NOX Budget units under paragraph (b)(1)of 
this section, NOX Budget units underSec. 96.4 that commence 
operation before January 1, 2002,must comply with the requirements of 
this subpart by May 1, 2002.
    (3) NOX Budget units under Sec. 96.4 thatcommence 
operation on or after January 1, 2002 and that report on anannual basis 
under Sec. 96.74(d) must comply with therequirements of this subpart by 
the later of the following dates:
    (i) May 1, 2002; or
    (ii) The earlier of:
    (A) 180 days after the date on which the unit commences operationor, 
(B) For units under Sec. 96.4(a)(1), 90 days after thedate on which the 
unit commences commercial operation.
    (4) NOX Budget units under Sec. 96.4 thatcommence 
operation on or after January 1, 2002 and that report on acontrol season 
basis under Sec. 96.74(d) must comply withthe requirements of this 
subpart by the later of the following dates:
    (i) The earlier of:
    (A) 180 days after the date on which the unit commences operationor,
    (B) For units under Sec. 96.4(a)(1), 90 days after thedate on which 
the unit commences commercial operation.
    (ii) However, if the applicable deadline under paragraph 
(b)(4)(i)section

[[Page 720]]

does not occur during a control period, May 1;immediately following the 
date determined in accordance with paragraph(b)(4)(i) of this section.
    (5) For a NOX Budget unit with a new stack or flue 
forwhich construction is completed after the applicable deadline 
underparagraph ( b)(1), (b)(2) or (b)(3) of this section or subpart I 
ofthis part:
    (i) 90 days after the date on which emissions first exit to 
theatmosphere through the new stack or flue;
    (ii) However, if the unit reports on a control season basis 
underSec. 96.74(d) and the applicable deadline under paragraph(b)(5)(i) 
of this section does not occur during the control period,May 1 
immediately following the applicable deadline in paragraph (b)(5)(i) of 
this section.
    (6) For a unit for which an application for a NOXBudget 
opt in permit is submitted and not denied or withdrawn, thecompliance 
dates specified under subpart I of this part.
    (c) Reporting data prior to initial certification. (1) Theowner or 
operator of a NOX Budget unit that misses thecertification 
deadline under paragraph (b)(1) of this section is noteligible to apply 
for early reduction credits. The owner or operatorof the unit becomes 
subject to the certification deadline underparagraph (b)(2) of this 
section.
    (2) The owner or operator of a NOX Budget underparagraphs 
(b)(3) or (b)(4) of this section must determine, record andreport 
NOX mass, heat input (if required for purposes ofallocations) 
and any other values required to determineNOX Mass (e.g. 
NOX emission rate and heatinput or NOX 
concentration and stack flow) using theprovisions of Sec. 75.70(g) of 
this chapter, from the dateand hour that the unit starts operating until 
all requiredcertification tests are successfully completed.
    (d) Prohibitions. (1) No owner or operator of aNOX Budget 
unit or a non-NOX Budget unitmonitored under Sec. 
75.72(b)(2)(ii) shall use anyalternative monitoring system, alternative 
reference method, or anyother alternative for the required continuous 
emission monitoringsystem without having obtained prior written approval 
in accordancewith Sec. 96.75.
    (2) No owner or operator of a NOX Budget unit or anon-
NOX Budget unit monitored underSec. 75.72(b)(2)(ii) shall 
operate the unit so as todischarge, or allow to be discharged, 
NOX emissions to theatmosphere without accounting for all 
such emissions in accordancewith the applicable provisions of this 
subpart and part 75 of thischapter except as provided for in Sec. 75.74 
of thischapter.
    (3) No owner or operator of a NOX Budget unit or anon-
NOX Budget unit monitored underSec. 75.72(b)(2)(ii) shall 
disrupt the continuous emissionmonitoring system, any portion thereof, 
or any other approved emissionmonitoring method, and thereby avoid 
monitoring and recordingNOX mass emissions discharged into 
the atmosphere, exceptfor periods of recertification or periods when 
calibration, qualityassurance testing, or maintenance is performed in 
accordance with theapplicable provisions of this subpart and part 75 of 
this chapterexcept as provided for in Sec. 75.74 of this chapter.
    (4) No owner or operator of a NOX Budget unit or anon-
NOX Budget unit monitored underSec. 75.72(b)(2)(ii) shall 
retire or permanently discontinueuse of the continuous emission 
monitoring system, any componentthereof, or any other approved emission 
monitoring system under thissubpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by a retired 
unitexemption under Sec. 96.5 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
permitting authority for use at that unit that providesemission data for 
the same pollutant or parameter as the retired ordiscontinued monitoring 
system; or
    (iii) The NOX authorized account representativesubmits 
notification of the date of certification testing of areplacement 
monitoring system in accordance withSec. 96.71(b)(2).



Sec. 96.71  Initial certification and recertification procedures

    (a) The owner or operator of a NOX Budget unit that 
issubject to an Acid Rain emissions limitation shall comply

[[Page 721]]

withthe initial certification and recertification procedures of part 75 
ofthis chapter, except that:
    (1) If, prior to January 1, 1998, the Administrator approved 
apetition under Sec. 75.17(a) or (b) of this chapter forapportioning 
the NOX emission rate measured in a commonstack or a petition 
under Sec. 75.66 of this chapter for analternative to a requirement in 
Sec. 75.17 of this chapter,the NOX authorized account 
representative shall resubmitthe petition to the Administrator under 
Sec. 96.75(a) todetermine if the approval applies under the 
NOX BudgetTrading Program.
    (2) For any additional CEMS required under the common 
stackprovisions in Sec. 75.72 of this chapter, or for anyNOX 
concentration CEMS used under the provisions ofSec. 75.71(a)(2) of this 
chapter, the owner or operatorshall meet the requirements of paragraph 
(b) of this section.
    (b) The owner or operator of a NOX Budget unit that isnot 
subject to an Acid Rain emissions limitation shall comply with 
thefollowing initial certification and recertification procedures, 
exceptthat the owner or operator of a unit that qualifies to use the 
lowmass emissions excepted monitoring methodology underSec. 75.19 shall 
also meet the requirements of paragraph (c)of this section and the owner 
or operator of a unit that qualifies touse an alternative monitoring 
system under subpart E of part 75 ofthis chapter shall also meet the 
requirements of paragraph (d) of thissection. The owner or operator of a 
NOX Budget unit thatis subject to an Acid Rain emissions 
limitation, but requiresadditional CEMS under the common stack 
provisions inSec. 75.72 of this chapter, or that uses a 
NOXconcentration CEMS under Sec. 75.71(a)(2) of this 
chapteralso shall comply with the following initial certification 
andrecertification procedures.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each monitoring system required by subpartH of part 75 
of this chapter (which includes the automated dataacquisition and 
handling system) successfully completes all of theinitial certification 
testing required under Sec. 75.20 ofthis chapter. The owner or operator 
shall ensure that all applicablecertification tests are successfully 
completed by the deadlinesspecified in Sec. 96.70(b). In addition, 
whenever the owneror operator installs a monitoring system in order to 
meet therequirements of this part in a location where no such 
monitoringsystem was previously installed, initial certification 
according toSec. 75.20 is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in a certifiedmonitoring 
system that the Administrator or the permitting authoritydetermines 
significantly affects the ability of the system toaccurately measure or 
record NOX mass emissions or heatinput or to meet the 
requirements of Sec. 75.21 of thischapter or appendix B to part 75 of 
this chapter, the owner oroperator shall recertify the monitoring system 
according toSec. 75.20(b) of this chapter. Furthermore, whenever 
theowner or operator makes a replacement, modification, or change to 
theflue gas handling system or the unit's operation that 
theAdministrator or the permitting authority determines to 
significantlychange the flow or concentration profile, the owner or 
operator shallrecertify the continuous emissions monitoring system 
according toSec. 75.20(b) of this chapter. Examples of changes 
whichrequire recertification include: replacement of the analyzer, 
changein location or orientation of the sampling probe or site, or 
changingof flow rate monitor polynomial coefficients.
    (3) Certification approval process for initial certificationsand 
recertification. (i) Notification of certification. TheNOX 
authorized account representative shall submit to thepermitting 
authority, the appropriate EPA Regional Office and thepermitting 
authority a written notice of the dates of certification inaccordance 
with Sec. 96.73.
    (ii) Certification application. The NOXauthorized account 
representative shall submit to the permittingauthority a certification 
application for each monitoring systemrequired under subpart H of part 
75 of this chapter. A completecertification application shall include 
the information specified insubpart H of part 75 of this chapter.

[[Page 722]]

    (iii) Except for units using the low mass emission 
exceptedmethodology under Sec. 75.19 of this chapter, theprovisional 
certification date for a monitor shall be determined usingthe procedures 
set forth in Sec. 75.20(a)(3) of thischapter. A provisionally certified 
monitor may be used under theNOX Budget Trading Program for a 
period not to exceed 120days after receipt by the permitting authority 
of the completecertification application for the monitoring system or 
componentthereof under paragraph (b)(3)(ii) of this section. Data 
measured andrecorded by the provisionally certified monitoring system or 
componentthereof, in accordance with the requirements of part 75 of 
thischapter, will be considered valid quality-assured data (retroactive 
tothe date and time of provisional certification), provided that 
thepermitting authority does not invalidate the provisional 
certificationby issuing a notice of disapproval within 120 days of 
receipt of thecomplete certification application by the permitting 
authority.
    (iv) Certification application formal approval process. 
Thepermitting authority will issue a written notice of approval 
ordisapproval of the certification application to the owner or 
operatorwithin 120 days of receipt of the complete certification 
applicationunder paragraph (b)(3)(ii) of this section. In the event 
thepermitting authority does not issue such a notice within such 120-
dayperiod, each monitoring system which meets the applicable 
performancerequirements of part 75 of this chapter and is included in 
thecertification application will be deemed certified for use under 
theNOX Budget Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then thepermitting authority 
will issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. A certificationapplication will 
be considered complete when all of the applicableinformation required to 
be submitted under paragraph (b)(3)(ii) ofthis section has been received 
by the permitting authority. If thecertification application is not 
complete, then the permittingauthority will issue a written notice of 
incompleteness that sets areasonable date by which the NOX 
authorized accountrepresentative must submit the additional information 
required tocomplete the certification application. If the 
NOXauthorized account representative does not comply with the 
notice ofincompleteness by the specified date, then the permitting 
authoritymay issue a notice of disapproval under paragraph (b)(3)(iv)(C) 
ofthis section.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system or component thereof does not meetthe performance 
requirements of this part, or if the certificationapplication is 
incomplete and the requirement for disapproval underparagraph 
(b)(3)(iv)(B) of this section has been met, the permittingauthority will 
issue a written notice of disapproval of thecertification application. 
Upon issuance of such notice ofdisapproval, the provisional 
certification is invalidated by thepermitting authority and the data 
measured and recorded by eachuncertified monitoring system or component 
thereof shall not beconsidered valid quality-assured data beginning with 
the date and hourof provisional certification. The owner or operator 
shall follow theprocedures for loss of certification in paragraph 
(b)(3)(v) of thissection for each monitoring system or component thereof 
which isdisapproved for initial certification.
    (D) Audit decertification. The permitting authority mayissue a 
notice of disapproval of the certification status of a monitorin 
accordance with Sec. 96.72(b).
    (v) Procedures for loss of certification. If the permittingauthority 
issues a notice of disapproval of a certificationapplication under 
paragraph (b)(3)(iv)(C) of this section or a noticeof disapproval of 
certification status under paragraph (b)(3)(iv)(D)of this section, then:
    (A) The owner or operator shall substitute the following values,for 
each hour of unit operation during the period of invalid databeginning 
with the

[[Page 723]]

date and hour of provisional certification andcontinuing until the time, 
date, and hour specified underSec. 75.20(a)(5)(i) of this chapter:
    (1) For units using or intending to monitor forNOX 
emission rate and heat input or for units using thelow mass emission 
excepted methodology under Sec. 75.19 ofthis chapter, the maximum 
potential NOX emission rate andthe maximum potential hourly 
heat input of the unit.
    (2) For units intending to monitor for NOX massemissions 
using a NOX pollutant concentration monitor anda flow 
monitor, the maximum potential concentration of NOXand the 
maximum potential flow rate of the unit under section 2.1 ofappendix A 
of part 75 of this chapter;
    (B) The NOX authorized account representative shallsubmit 
a notification of certification retest dates and a newcertification 
application in accordance with paragraphs (b)(3)(i) and(ii) of this 
section; and
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the permitting authority's notice of disapproval, nolater 
than 30 unit operating days after the date of issuance of thenotice of 
disapproval.
    (c) Initial certification and recertification procedures forlow mass 
emission units using the excepted methodologies underSec. 75.19 of this 
chapter. The owner or operator of agas-fired or oil-fired unit using the 
low mass emissions exceptedmethodology under Sec. 75.19 of this chapter 
shall meet theapplicable general operating requirements of Sec. 75.10 
ofthis chapter, the applicable requirements of Sec. 75.19 ofthis 
chapter, and the applicable certification requirements ofSec. 96.71 of 
this chapter, except that the exceptedmethodology shall be deemed 
provisionally certified for use under theNOX Budget Trading 
Program, as of the following dates:
    (1) For units that are reporting on an annual basis underSec. 
96.74(d);
    (i) For a unit that has commences operation before its 
compliancedeadline under Sec. 96.71(b), from January 1 of the 
yearfollowing submission of the certification application for approval 
touse the low mass emissions excepted methodology underSec. 75.19 of 
this chapter until the completion of theperiod for the permitting 
authority review; or
    (ii) For a unit that commences operation after its 
compliancedeadline under Sec. 96.71(b), the date of submission of 
thecertification application for approval to use the low mass 
emissionsexcepted methodology under Sec. 75.19 of this chapter untilthe 
completion of the period for permitting authority review, or
    (2) For units that are reporting on a control period basis 
underSec. 96.74(b)(3)(ii) of this part:
    (i) For a unit that commenced operation before its 
compliancedeadline under Sec. 96.71(b), where the 
certificationapplication is submitted before May 1, from May 1 of the 
year of thesubmission of the certification application for approval to 
use thelow mass emissions excepted methodology under Sec. 75.19 ofthis 
chapter until the completion of the period for the permittingauthority 
review; or
    (ii) For a unit that commenced operation before its 
compliancedeadline under Sec. 96.71(b), where the 
certificationapplication is submitted after May 1, from May 1 of the 
year followingsubmission of the certification application for approval 
to use thelow mass emissions excepted methodology under Sec. 75.19 
ofthis chapter until the completion of the period for the 
permittingauthority review; or
    (iii) For a unit that commences operation after its 
compliancedeadline under Sec. 96.71(b), where the unit 
commencesoperation before May 1, from May 1 of the year that the unit 
commencedoperation, until the completion of the period for the 
permittingauthority's review.
    (iv) For a unit that has not operated after its compliancedeadline 
under Sec. 96.71(b), where the certificationapplication is submitted 
after May 1, but before October 1st, from thedate of submission of a 
certification application for approval to usethe low mass emissions 
excepted methodology under Sec. 75.19of this chapter until the 
completion of the period for the permittingauthority's review.
    (d) Certification/recertification procedures for 
alternativemonitoring systems.

[[Page 724]]

The NOX authorized accountrepresentative representing the 
owner or operator of each unitapplying to monitor using an alternative 
monitoring system approved bythe Administrator and, if applicable, the 
permitting authority undersubpart E of part 75 of this chapter shall 
apply for certification tothe permitting authority prior to use of the 
system under theNOX Trading Program. The NOX 
authorizedaccount representative shall apply for recertification 
following areplacement, modification or change according to the 
procedures inparagraph (b) of this section. The owner or operator of an 
alternativemonitoring system shall comply with the notification and 
applicationrequirements for certification according to the procedures 
specifiedin paragraph (b)(3) of this section and Sec. 75.20(f) ofthis 
chapter .



Sec. 96.72  Out of control periods.

    (a) Whenever any monitoring system fails to meet the 
qualityassurance requirements of appendix B of part 75 of this chapter, 
datashall be substituted using the applicable procedures in subpart 
D,appendix D, or appendix E of part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any system or component shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 96.71 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the permitting authority will issue a notice of disapproval 
of thecertification status of such system or component. For the purposes 
ofthis paragraph, an audit shall be either a field audit or an audit 
ofany information submitted to the permitting authority or 
theAdministrator. By issuing the notice of disapproval, the 
permittingauthority revokes prospectively the certification status of 
the systemor component. The data measured and recorded by the system 
orcomponent shall not be considered valid quality-assured data from 
thedate of issuance of the notification of the revoked 
certificationstatus until the date and time that the owner or operator 
completessubsequently approved initial certification or recertification 
tests.The owner or operator shall follow the initial certification 
orrecertification procedures in Sec. 96.71 for eachdisapproved system.



Sec. 96.73  Notifications.

    The NOX authorized account representative for 
aNOX Budget unit shall submit written notice to thepermitting 
authority and the Administrator in accordance withSec. 75.61 of this 
chapter, except that if the unit is notsubject to an Acid Rain emissions 
limitation, the notification is onlyrequired to be sent to the 
permitting authority.



Sec. 96.74  Recordkeeping and reporting.

    (a) General provisions. (1) The NOX authorizedaccount 
representative shall comply with all recordkeeping andreporting 
requirements in this section and with the requirements ofSec. 96.10(e).
    (2) If the NOX authorized account representative for 
aNOX Budget unit subject to an Acid Rain Emissionlimitation 
who signed and certified any submission that is made undersubpart F or G 
of part 75 of this chapter and which includes data andinformation 
required under this subpart or subpart H of part 75 ofthis chapter is 
not the same person as the designated representativeor the alternative 
designated representative for the unit under part72 of this chapter, the 
submission must also be signed by thedesignated representative or the 
alternative designatedrepresentative.
    (b) Monitoring plans. (1) The owner or operator of a unitsubject to 
an Acid Rain emissions limitation shall comply withrequirements of Sec. 
75.62 of this chapter, except that themonitoring plan shall also include 
all of the information required bysubpart H of part 75 of this chapter.
    (2) The owner or operator of a unit that is not subject to an 
AcidRain emissions limitation shall comply with requirements ofSec. 
75.62 of this chapter, except that the monitoring planis only required 
to include the information required by subpart H ofpart 75 of this 
chapter.

[[Page 725]]

    (c) Certification applications. The NOXauthorized account 
representative shall submit an application to thepermitting authority 
within 45 days after completing all initialcertification or 
recertification tests required underSec. 96.71 including the 
information required under subpartH of part 75 of this chapter.
    (d) Quarterly reports. The NOX authorizedaccount 
representative shall submit quarterly reports, as follows:
    (1) If a unit is subject to an Acid Rain emission limitation or 
ifthe owner or operator of the NOX budget unit chooses tomeet 
the annual reporting requirements of this subpart H, theNOX 
authorized account representative shall submit aquarterly report for 
each calendar quarter beginning with:
    (i) For units that elect to comply with the early reduction 
creditprovisions under Sec. 96.55 of this part, the calenderquarter 
that includes the date of initial provisional certificationunder Sec. 
96.71(b)(3)(iii). Data shall be reported from thedate and hour 
corresponding to the date and hour of provisionalcertification; or
    (ii) For units commencing operation prior to May 1, 2002 that arenot 
required to certify monitors by May 1, 2000 underSec. 96.70(b)(1), the 
earlier of the calender quarter thatincludes the date of initial 
provisional certification underSec. 96.71(b)(3)(iii) or, if the 
certification tests are notcompleted by May 1, 2002, the partial 
calender quarter from May 1,2002 through June 30, 2002. Data shall be 
recorded and reported fromthe earlier of the date and hour corresponding 
to the date and hour ofprovisional certification or the first hour on 
May 1, 2002; or
    (iii) For a unit that commences operation after May 1, 2002, 
thecalendar quarter in which the unit commences operation, Data shall 
bereported from the date and hour corresponding to when the 
unitcommenced operation.
    (2) If a NOX budget unit is not subject to an AcidRain 
emission limitation, then the NOX authorized 
accountrepresentative shall either:
    (i) Meet all of the requirements of part 75 related to monitoringand 
reporting NOX mass emissions during the entire yearand meet 
the reporting deadlines specified in paragraph (d)(1) of thissection; or
    (ii) Submit quarterly reports only for the periods from theearlier 
of May 1 or the date and hour that the owner or operatorsuccessfully 
completes all of the recertification tests required underSec. 
75.74(d)(3) through September 30 of each year inaccordance with the 
provisions of Sec. 75.74(b) of thischapter. The NOX 
authorized account representative shallsubmit a quarterly report for 
each calendar quarter, beginning with:
    (A) For units that elect to comply with the early reductioncredit 
provisions under Sec. 96.55, the calender quarterthat includes the date 
of initial provisional certification underSec. 96.71(b)(3)(iii). Data 
shall be reported from the dateand hour corresponding to the date and 
hour of provisionalcertification; or
    (B) For units commencing operation prior to May 1, 2002 thatare not 
required to certify monitors by May 1, 2000 underSec. 96.70(b)(1), the 
earlier of the calender quarter thatincludes the date of initial 
provisional certification underSec. 96.71(b)(3)(iii), or if the 
certification tests are notcompleted by May 1, 2002, the partial 
calender quarter from May 1,2002 through June 30, 2002. Data shall be 
reported from the earlier ofthe date and hour corresponding to the date 
and hour of provisionalcertification or the first hour of May 1, 2002; 
or
    (C) For units that commence operation after May 1, 2002during the 
control period, the calender quarter in which the unitcommences 
operation. Data shall be reported from the date and hourcorresponding to 
when the unit commenced operation; or
    (D) For units that commence operation after May 1, 2002 andbefore 
May 1 of the year in which the unit commences operation, theearlier of 
the calender quarter that includes the date of initialprovisional 
certification under Sec. 96.71(b)(3)(iii) or, ifthe certification tests 
are not completed by May 1 of the year inwhich the unit commences 
operation, May 1 of the year in which theunit commences operation. Data 
shall be reported from the earlier ofthe date and hour corresponding to 
the date and hour of provisionalcertification or the first hour of May 1 
of the

[[Page 726]]

year after theunit commences operation.
    (E) For units that commence operation after May 1, 2002 andafter 
September 30 of the year in which the unit commences operation,the 
earlier of the calender quarter that includes the date of 
initialprovisional certification under Sec. 96.71(b)(3)(iii) or, ifthe 
certification tests are not completed by May 1 of the year afterthe unit 
commences operation, May 1 of the year after the unitcommences 
operation. Data shall be reported from the earlier of thedate and hour 
corresponding to the date and hour of provisionalcertification or the 
first hour of May 1 of the year after the unitcommences operation.
    (3) The NOX authorized account representative shallsubmit 
each quarterly report to the Administrator within 30 daysfollowing the 
end of the calendar quarter covered by the report.Quarterly reports 
shall be submitted in the manner specified insubpart H of part 75 of 
this chapter and Sec. 75.64 of thischapter.
    (i) For units subject to an Acid Rain Emissions limitation,quarterly 
reports shall include all of the data and informationrequired in subpart 
H of part 75 of this chapter for eachNOX Budget unit (or 
group of units using a common stack)as well as information required in 
subpart G of part 75 of thischapter.
    (ii) For units not subject to an Acid Rain Emissions 
limitation,quarterly reports are only required to include all of the 
data andinformation required in subpart H of part 75 of this chapter for 
eachNOX Budget unit (or group of units using a common stack).
    (4) Compliance certification. The NOX authorizedaccount 
representative shall submit to the Administrator a 
compliancecertification in support of each quarterly report based on 
reasonableinquiry of those persons with primary responsibility for 
ensuring thatall of the unit's emissions are correctly and fully 
monitored. Thecertification shall state that:
    (i) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications; and
    (ii) For a unit with add-on NOX emission controls andfor 
all hours where data are substituted in accordance withSec. 75.34(a)(1) 
of this chapter, the add-on emissioncontrols were operating within the 
range of parameters listed in themonitoring plan and the substitute 
values do not systematicallyunderestimate NOX emissions; and
    (iii) For a unit that is reporting on a control period basis 
underSec. 96.74(d) the NOX emission rate andNOX 
concentration values substituted for missing dataunder subpart D of part 
75 of this chapter are calculated using onlyvalues from a control period 
and do not systematically underestimateNOX emissions.



Sec. 96.75  Petitions.

    (a) The NOX authorized account representative of 
aNOX Budget unit that is subject to an Acid Rain 
emissionslimitation may submit a petition under Sec. 75.66 of 
thischapter to the Administrator requesting approval to apply 
analternative to any requirement of this subpart.
    (1) Application of an alternative to any requirement of thissubpart 
is in accordance with this subpart only to the extent that thepetition 
is approved by the Administrator, in consultation with thepermitting 
authority.
    (2) Notwithstanding paragraph (a)(1) of this section, if thepetition 
requests approval to apply an alternative to a requirementconcerning any 
additional CEMS required under the common stackprovisions of Sec. 75.72 
of this chapter, the petition isgoverned by paragraph (b) of this 
section.
    (b) The NOX authorized account representative of 
aNOX Budget unit that is not subject to an Acid Rainemissions 
limitation may submit a petition under Sec. 75.66of this chapter to the 
permitting authority and the Administratorrequesting approval to apply 
an alternative to any requirement of thissubpart.
    (1) The NOX authorized account representative of 
aNOX Budget unit that is subject to an Acid Rain 
emissionslimitation may submit a petition under Sec. 75.66 of 
thischapter to the permitting

[[Page 727]]

authority and the Administratorrequesting approval to apply an 
alternative to a requirementconcerning any additional CEMS required 
under the common stackprovisions of Sec. 75.72 of this chapter or 
aNOX concentration CEMS used under 75.71(a)(2) of 
thischapter.
    (2) Application of an alternative to any requirement of thissubpart 
is in accordance with this subpart only to the extent thepetition under 
paragraph (b) of this section is approved by both thepermitting 
authority and the Administrator.



Sec. 96.76  Additional requirements to provide heat input data for allocationspurposes.

    (a) The owner or operator of a unit that elects to monitor andreport 
NOX Mass emissions using a NOXconcentration system 
and a flow system shall also monitor and reportheat input at the unit 
level using the procedures set forth in part 75of this chapter for any 
source located in a state developing sourceallocations based upon heat 
input.
    (b) The owner or operator of a unit that monitor and 
reportNOX Mass emissions using a NOX 
concentrationsystem and a flow system shall also monitor and report heat 
input atthe unit level using the procedures set forth in part 75 of 
thischapter for any source that is applying for early reduction 
creditsunder Sec. 96.55.



                    Subpart I_Individual Unit Opt-ins



Sec. 96.80  Applicability.

    A unit that is in the State, is not a NOX Budget 
unitunder Sec. 96.4, vents all of its emissions to a stack, andis 
operating, may qualify, under this subpart, to become aNOX 
Budget opt-in source. A unit that is a NOXBudget unit, is 
covered by a retired unit exemption underSec. 96.5 that is in effect, 
or is not operating is noteligible to become a NOX Budget 
opt-in source.



Sec. 96.81  General.

    Except otherwise as provided in this part, a NOXBudget 
opt-in source shall be treated as a NOX Budget unitfor 
purposes of applying subparts A through H of this part.



Sec. 96.82  NOX authorized account representative.

    A unit for which an application for a NOX Budget opt-in 
permit is submitted and not denied or withdrawn, or aNOX 
Budget opt-in source, located at the same source asone or more 
NOX Budget units, shall have the sameNOX 
authorized account representative as suchNOX Budget units.



Sec. 96.83  Applying for NOX Budget opt-in permit.

    (a) Applying for initial NOX Budget opt-inpermit. In 
order to apply for an initial NOX Budget opt-inpermit, the 
NOX authorized account representative of aunit qualified 
under Sec. 96.80 may submit to the permittingauthority at any time, 
except as provided underSec. 96.86(g):
    (1) A complete NOX Budget permit application underSec. 
96.22;
    (2) A monitoring plan submitted in accordance with subpart H ofthis 
part; and
    (3) A complete account certificate of representation underSec. 
96.13, if no NOX authorized accountrepresentative has been 
previously designated for the unit.
    (b) Duty to reapply. The NOX authorized 
accountrepresentative of a NOX Budget opt-in source shall 
submita complete NOX Budget permit application underSec. 
96.22 to renew the NOX Budget opt-in permitin accordance with 
Sec. 96.21(c) and, if applicable, anupdated monitoring plan in 
accordance with subpart H of this part.



Sec. 96.84  Opt-in process.

    The permitting authority will issue or deny a NOXBudget 
opt-in permit for a unit for which an initial application for 
aNOX Budget opt-in permit under Sec. 96.83 issubmitted, in 
accordance with Sec. 96.20 and the following:
    (a) Interim review of monitoring plan. The permittingauthority will 
determine, on an interim basis, the sufficiency of themonitoring plan 
accompanying the initial application for aNOX Budget opt-in 
permit under Sec. 96.83. Amonitoring plan is sufficient, for purposes 
of interim review, if theplan appears to contain information 
demonstrating that theNOX emissions rate

[[Page 728]]

and heat input of the unit aremonitored and reported in accordance with 
subpart H of this part. Adetermination of sufficiency shall not be 
construed as acceptance orapproval of the unit's monitoring plan.
    (b) If the permitting authority determines that the unit'smonitoring 
plan is sufficient under paragraph (a) of this section andafter 
completion of monitoring system certification under subpart H ofthis 
part, the NOX emissions rate and the heat input ofthe unit 
shall be monitored and reported in accordance with subpart Hof this part 
for one full control period during which monitoringsystem availability 
is not less than 90 percent and during which theunit is in full 
compliance with any applicable State or Federalemissions or emissions-
related requirements. Solely for purposes ofapplying the requirements in 
the prior sentence, the unit shall betreated as a ``NOX 
Budget unit'' prior toissuance of a NOX Budget opt-in permit 
covering the unit.
    (c) Based on the information monitored and reported underparagraph 
(b) of this section, the unit's baseline heat rate shall becalculated as 
the unit's total heat input (in mmBtu) for the controlperiod and the 
unit's baseline NOX emissions rate shall becalculated as the 
unit's total NOX emissions (in lb) forthe control period 
divided by the unit's baseline heat rate.
    (d) After calculating the baseline heat input and the 
baselineNOX emissions rate for the unit under paragraph (c) 
ofthis section, the permitting authority will serve a 
draftNOX Budget opt-in permit on the NOX 
authorizedaccount representative of the unit.
    (e) Confirmation of intention to opt-in. Within 20 daysafter the 
issuance of the draft NOX Budget opt-in permit,the 
NOX authorized account representative of the unit mustsubmit 
to the permitting authority a confirmation of the intention toopt in the 
unit or a withdrawal of the application for aNOX Budget opt-
in permit under Sec. 96.83. Thepermitting authority will treat the 
failure to make a timelysubmission as a withdrawal of the NOX 
Budget opt-in permitapplication.
    (f) Issuance of draft NOX Budget opt-inpermit. If the 
NOX authorized account representativeconfirms the intention 
to opt-in the unit under paragraph (e) of thissection, the permitting 
authority will issue the draft NOXBudget opt-in permit in 
accordance with Sec. 96.20.
    (g) Notwithstanding paragraphs (a) through (f) of this section, ifat 
any time before issuance of a draft NOX Budget opt-inpermit 
for the unit, the permitting authority determines that the unitdoes not 
qualify as a NOX Budget opt-in source underSec. 96.80, the 
permitting authority will issue a draftdenial of a NOX Budget 
opt-in permit for the unit inaccordance with Sec. 96.20.
    (h) Withdrawal of application for NOX Budgetopt-in 
permit. A NOX authorized account representativeof a unit may 
withdraw its application for a NOX Budgetopt-in permit under 
Sec. 96.83 at any time prior to theissuance of the final NOX 
Budget opt-in permit. Once theapplication for a NOX Budget 
opt-in permit is withdrawn, aNOX authorized account 
representative wanting to reapplymust submit a new application for a 
NOX Budget permitunder Sec. 96.83.
    (i) Effective date. The effective date of the initialNOX 
Budget opt-in permit shall be May 1 of the firstcontrol period starting 
after the issuance of the initialNOX Budget opt-in permit by 
the permitting authority. Theunit shall be a NOX Budget opt-
in source and aNOX Budget unit as of the effective date of 
the initialNOX Budget opt-in permit.



Sec. 96.85  NOX Budget opt-in permit contents.

    (a) Each NOX Budget opt-in permit (including any draftor 
proposed NOX Budget opt-in permit, if applicable) willcontain 
all elements required for a complete NOX Budgetopt-in permit 
application under Sec. 96.22 as approved oradjusted by the permitting 
authority.
    (b) Each NOX Budget opt-in permit is deemed toincorporate 
automatically the definitions of terms underSec. 96.2 and, upon 
recordation by the Administrator undersubpart F, G, or I of this part, 
every allocation, transfer, ordeduction of NOX allowances to 
or from the complianceaccounts of each NOX Budget opt-in 
source covered by theNOX Budget opt-in permit or the 
overdraft account of theNOX Budget source where the 
NOX Budget opt-insource is located.

[[Page 729]]



Sec. 96.86  Withdrawal from NOX Budget Trading Program.

    (a) Requesting withdrawal. To withdraw from theNOX Budget 
Trading Program, the NOX authorizedaccount representative of 
a NOX Budget opt-in source shallsubmit to the permitting 
authority a request to withdraw effective asof a specified date prior to 
May 1 or after September 30. Thesubmission shall be made no later than 
90 days prior to the requestedeffective date of withdrawal.
    (b) Conditions for withdrawal. Before a NOXBudget opt-in 
source covered by a request under paragraph (a) of thissection may 
withdraw from the NOX Budget Trading Programand the 
NOX Budget opt-in permit may be terminated underparagraph (e) 
of this section, the following conditions must be met:
    (1) For the control period immediately before the withdrawal is tobe 
effective, the NOX authorized account representativemust 
submit or must have submitted to the permitting authority anannual 
compliance certification report in accordance withSec. 96.30.
    (2) If the NOX Budget opt-in source has excessemissions 
for the control period immediately before the withdrawal isto be 
effective, the Administrator will deduct or has deducted fromthe 
NOX Budget opt-in source's compliance account, or 
theoverdraft account of the NOX Budget source where 
theNOX Budget opt-in source is located, the full 
amountrequired under Sec. 96.54(d) for the control period.
    (3) After the requirements for withdrawal under paragraphs (b)(1)and 
(2) of this section are met, the Administrator will deduct fromthe 
NOX Budget opt-in source's compliance account, or 
theoverdraft account of the NOX Budget source where 
theNOX Budget opt-in source is located, 
NOXallowances equal in number to and allocated for the same 
or a priorcontrol period as any NOX allowances allocated to 
thatsource under Sec. 96.88 for any control period for which 
thewithdrawal is to be effective. The Administrator will close 
theNOX Budget opt-in source's compliance account and 
willestablish, and transfer any remaining allowances to, a new 
generalaccount for the owners and operators of the NOX 
Budgetopt-in source. The NOX authorized account 
representativefor the NOX Budget opt-in source shall become 
theNOX authorized account representative for the 
generalaccount.
    (c) A NOX Budget opt-in source that withdraws from 
theNOX Budget Trading Program shall comply with 
allrequirements under the NOX Budget Trading 
Programconcerning all years for which such NOX Budget opt-
insource was a NOX Budget opt-in source, even if 
suchrequirements arise or must be complied with after the withdrawal 
takeseffect.
    (d) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of NOX allowances required),the permitting 
authority will issue a notification to theNOX authorized 
account representative of theNOX Budget opt-in source of the 
acceptance of thewithdrawal of the NOX Budget opt-in source 
as of aspecified effective date that is after such requirements have 
been metand that is prior to May 1 or after September 30.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the NOX authorized account representativeof 
the NOX Budget opt-in source that the NOXBudget 
opt-in source's request to withdraw is denied. If theNOX 
Budget opt-in source's request to withdraw is denied,the NOX 
Budget opt-in source shall remain subject to therequirements for a 
NOX Budget opt-in source.
    (e) Permit amendment. After the permitting authority issuesa 
notification under paragraph (d)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
NOX Budget permit covering theNOX Budget opt-in 
source to terminate the NOXBudget opt-in permit as of the 
effective date specified underparagraph (d)(1) of this section. A 
NOX Budget opt-insource shall continue to be a NOX 
Budget opt-in sourceuntil the effective date of the termination.
    (f) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the NOXBudget opt-in source's 
request to withdraw,

[[Page 730]]

the NOXauthorized account representative may submit another 
request towithdraw in accordance with paragraphs (a) and (b) of this 
section.
    (g) Ability to return to the NOX Budget TradingProgram. 
Once a NOX Budget opt-in source withdraws fromthe 
NOX Budget Trading Program and its NOXBudget opt-
in permit is terminated under this section, theNOX authority 
account representative may not submitanother application for a 
NOX Budget opt-in permit underSec. 96.83 for the unit prior 
to the date that is 4 yearsafter the date on which the terminated 
NOX Budget opt-inpermit became effective.



Sec. 96.87  Change in regulatory status.

    (a) Notification. When a NOX Budget opt-insource becomes 
a NOX Budget unit underSec. 96.4, the NOX 
authorized accountrepresentative shall notify in writing the permitting 
authority andthe Administrator of such change in the NOX 
Budget opt-insource's regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's action. (1)(i) When 
the NOX Budget opt-in source becomes aNOX Budget 
unit under Sec. 96.4, the permittingauthority will revise the 
NOX Budget opt-in source'sNOX Budget opt-in permit 
to meet the requirements of aNOX Budget permit under Sec. 
96.23 as of aneffective date that is the date on which such 
NOX Budgetopt-in source becomes a NOX Budget unit 
underSec. 96.4.
    (ii)(A) The Administrator will deduct from the compliance accountfor 
the NOX Budget unit under paragraph (b)(1)(i) of thissection, 
or the overdraft account of the NOX Budget sourcewhere the 
unit is located, NOX allowances equal in numberto and 
allocated for the same or a prior control period as:
    (1) Any NOX allowances allocated to theNOX 
Budget unit (as a NOX Budget opt-insource) under Sec. 96.88 
for any control period after thelast control period during which the 
unit's NOX Budgetopt-in permit was effective; and
    (2) If the effective date of the NOX Budgetpermit 
revision under paragraph (b)(1)(i) of this section is during acontrol 
period, the NOX allowances allocated to theNOX 
Budget unit (as a NOX Budget opt-insource) under Sec. 96.88 
for the control period multipliedby the ratio of the number of days, in 
the control period, startingwith the effective date of the permit 
revision under paragraph (b)(1)(i) of this section, divided by the total 
number of days in thecontrol period.
    (B) The NOX authorized account representative shallensure 
that the compliance account of the NOX Budget unitunder 
paragraph (b)(1)(i) of this section, or the overdraft account ofthe 
NOX Budget source where the unit is located, includesthe 
NOX allowances necessary for completion of thededuction under 
paragraph (b)(1)(ii)(A) of this section. If thecompliance account or 
overdraft account does not contain sufficientNOX allowances, 
the Administrator will deduct the requirednumber of NOX 
allowances, regardless of the control periodfor which they were 
allocated, whenever NOX allowances arerecorded in either 
account.
    (iii)(A) For every control period during which the 
NOXBudget permit revised under paragraph (b)(1)(i) of this 
section iseffective, the NOX Budget unit under paragraph 
(b)(1)(i)of this section will be treated, solely for purposes 
ofNOX allowance allocations under Sec. 96.42, as aunit that 
commenced operation on the effective date of theNOX Budget 
permit revision under paragraph (b)(1)(i) ofthis section and will be 
allocated NOX allowances underSec. 96.42.
    (B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, ifthe 
effective date of the NOX Budget permit revision 
underparagraph (b)(1)(i) of this section is during a control period, 
thefollowing number of NOX allowances will be allocated tothe 
NOX Budget unit under paragraph (b)(1)(i) of thissection 
under Sec. 96.42 for the control period: the numberof NOX 
allowances otherwise allocated to theNOX Budget unit under 
Sec. 96.42 for the controlperiod multiplied by the ratio of the number 
of days, in the controlperiod, starting with the effective date of the 
permit revision underparagraph (b)(1)(i) of this section, divided by the 
total number ofdays in the control period.
    (2)(i) When the NOX authorized account representativeof a 
NOX Budget opt-in source does not renew itsNOX 
Budget opt-in permit under Sec. 96.83(b),

[[Page 731]]

the Administrator will deduct from the NOX Budgetopt-in 
unit's compliance account, or the overdraft account of theNOX 
Budget source where the NOX Budget opt-insource is located, 
NOX allowances equal in number to andallocated for the same 
or a prior control period as anyNOX allowances allocated to 
the NOX Budgetopt-in source under Sec. 96.88 for any control 
period afterthe last control period for which the NOX Budget 
opt-inpermit is effective. The NOX authorized 
accountrepresentative shall ensure that the NOX Budget opt-
insource's compliance account or the overdraft account of 
theNOX Budget source where the NOX Budget opt-
insource is located includes the NOX allowances necessaryfor 
completion of such deduction. If the compliance account oroverdraft 
account does not contain sufficient NOXallowances, the 
Administrator will deduct the required number ofNOX 
allowances, regardless of the control period for whichthey were 
allocated, whenever NOX allowances are recordedin either 
account.
    (ii) After the deduction under paragraph (b)(2)(i) of this sectionis 
completed, the Administrator will close the NOX Budgetopt-in 
source's compliance account. If any NOX allowancesremain in 
the compliance account after completion of such deductionand any 
deduction under Sec. 96.54, the Administrator willclose the 
NOX Budget opt-in source's compliance accountand will 
establish, and transfer any remaining allowances to, a newgeneral 
account for the owners and operators of the NOXBudget opt-in 
source. The NOX authorized accountrepresentative for the 
NOX Budget opt-in source shallbecome the NOX 
authorized account representative for thegeneral account.



Sec. 96.88  NOX allowance allocations to opt-in units.

    (a) NOX allowance allocation. (1) ByDecember 31 
immediately before the first control period for which theNOX 
Budget opt-in permit is effective, the permittingauthority will allocate 
NOX allowances to theNOX Budget opt-in source and 
submit to the Administratorthe allocation for the control period in 
accordance with paragraph (b)of this section.
    (2) By no later than December 31, after the first control periodfor 
which the NOX Budget opt-in permit is in effect, andDecember 
31 of each year thereafter, the permitting authority willallocate 
NOX allowances to the NOX Budget opt-in source, 
and submit to the Administrator allocations for the nextcontrol period, 
in accordance with paragraph (b) of this section.
    (b) For each control period for which the NOX Budgetopt-
in source has an approved NOX Budget opt-in permit,the 
NOX Budget opt-in source will be allocatedNOX 
allowances in accordance with the followingprocedures:
    (1) The heat input (in mmBtu) used for calculating 
NOXallowance allocations will be the lesser of:
    (i) The NOX Budget opt-in source's baseline heat 
inputdetermined pursuant to Sec. 96.84(c); or
    (ii) The NOX Budget opt-in source's heat input, 
asdetermined in accordance with subpart H of this part, for the 
controlperiod in the year prior to the year of the control period for 
whichthe NOX allocations are being calculated.
    (2) The permitting authority will allocate NOXallowances 
to the NOX Budget opt-in source in an amountequaling the heat 
input (in mmBtu) determined under paragraph (b)(1)of this section 
multiplied by the lesser of:
    (i) The NOX Budget opt-in source's baselineNOX 
emissions rate (in lb/mmBtu) determined pursuant toSec. 96.84(c); or
    (ii) The most stringent State or Federal NOX 
emissionslimitation applicable to the NOX Budget opt-in 
sourceduring the control period.

Subpart J--Mobile and Area Sources [Reserved]

Subparts K--Z [Reserved]



      Subpart AA_CAIR NOX Annual Trading ProgramGeneral Provisions

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.

[[Page 732]]



Sec. 96.101  Purpose.

    This subpart and subparts BB through II establish the model 
rulecomprising general provisions and the designated 
representative,permitting, allowance, monitoring, and opt-in provisions 
for the StateClean Air Interstate Rule (CAIR) NOX Annual 
TradingProgram, under section 110 of the Clean Air Act andSec. 51.123 
of this chapter, as a means of mitigatinginterstate transport of fine 
particulates and nitrogen oxides. Theowner or operator of a unit or a 
source shall comply with therequirements of this subpart and subparts BB 
through II as a matter offederal law only if the State with jurisdiction 
over the unit and thesource incorporates by reference such subparts or 
otherwise adopts therequirements of such subparts in accordance 
withSec. 51.123(o)(1) or (2) of this chapter, the State submitsto the 
Administrator one or more revisions of the State implementationplan that 
include such adoption, and the Administrator approves suchrevisions. If 
the State adopts the requirements of such subparts inaccordance with 
Sec. 51.123(o)(1) or (2) of this chapter,then the State authorizes the 
Administrator to assist the State inimplementing the CAIR NOX 
Annual Trading Program bycarrying out the functions set forth for the 
Administrator in suchsubparts.



Sec. 96.102  Definitions.

    The terms used in this subpart and subparts BB through II shallhave 
the meanings set forth in this section as follows:
    Account number means the identification number given by 
theAdministrator to each CAIR NOX Allowance Tracking 
Systemaccount.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides air pollution control and emission reduction programestablished 
by the Administrator under title IV of the CAA and parts72 through 78 of 
this chapter.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRNOX 
allowances, the determination by a permittingauthority or the 
Administrator of the amount of such CAIRNOX allowances to be 
initially credited to a CAIRNOX unit, a new unit set-aside, 
or other entity.
    Allowance transfer deadline means, for a control period,midnight of 
March 1 (if it is a business day), or midnight of thefirst business day 
thereafter (if March 1 is not a business day),immediately following the 
control period and is the deadline by whicha CAIR NOX 
allowance transfer must be submitted forrecordation in a CAIR 
NOX source's compliance account inorder to be used to meet 
the source's CAIR NOX emissionslimitation for such control 
period in accordance withSec. 96.154.
    Alternate CAIR designated representative means, for a 
CAIRNOX source and each CAIR NOX unit at 
thesource, the natural person who is authorized by the owners 
andoperators of the source and all such units at the source, 
inaccordance with subparts BB and II of this part, to act on behalf 
ofthe CAIR designated representative in matters pertaining to the 
CAIRNOX Annual Trading Program. If the CAIR 
NOXsource is also a CAIR SO2 source, then this 
natural personshall be the same person as the alternate CAIR 
designatedrepresentative under the CAIR SO2 Trading Program. 
If theCAIR NOX source is also a CAIR NOX 
OzoneSeason source, then this natural person shall be the same person 
asthe alternate CAIR designated representative under the 
CAIRNOX Ozone Season Trading Program. If the 
CAIRNOX source is also subject to the Acid Rain Program, 
thenthis natural person shall be the same person as the 
alternatedesignated representative under the Acid Rain Program. If the 
CAIRNOX source is also subject to the Hg Budget 
TradingProgram, then this natural person shall be the same person as 
thealternate Hg designated representative under the Hg Budget 
TradingProgram.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions

[[Page 733]]

monitoring system approved for use under subpartHH of this part, 
designed to interpret and convert individual outputsignals from 
pollutant concentration monitors, flow monitors, diluentgas monitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial thinnings, slash, brush, or byproduct from 
conversion oftrees to merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil- or other-fuel-firedcombustion 
device used to produce heat and to transfer heat torecirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BB, FF, and II of this part, to transfer 
andotherwise dispose of CAIR NOX allowances held in 
thegeneral account and, with regard to a compliance account, the 
CAIRdesignated representative of the source.
    CAIR designated representative means, for a CAIRNOX 
source and each CAIR NOX unit at thesource, the natural 
person who is authorized by the owners andoperators of the source and 
all such units at the source, inaccordance with subparts BB and II of 
this part, to represent andlegally bind each owner and operator in 
matters pertaining to the CAIRNOX Annual Trading Program. If 
the CAIR NOXsource is also a CAIR SO2 source, then 
this natural personshall be the same person as the CAIR designated 
representative underthe CAIR SO2 Trading Program. If the CAIR 
NOXsource is also a CAIR NOX Ozone Season source, 
then thisnatural person shall be the same person as the CAIR 
designatedrepresentative under the CAIR NOX Ozone Season 
TradingProgram. If the CAIR NOX source is also subject to 
theAcid Rain Program, then this natural person shall be the same 
personas the designated representative under the Acid Rain Program. If 
theCAIR NOX source is also subject to the Hg Budget 
TradingProgram, then this natural person shall be the same person as the 
Hgdesignated representative under the Hg Budget Trading Program.
    CAIR NOX allowance means a limitedauthorization issued by a 
permitting authority or the Administratorunder provisions of a State 
implementation plan that are approvedunder Sec. 51.123(o)(1) or (2) or 
(p) of this chapter, orunder subpart EE of part 97 or Sec. 97.188 of 
this chapter,to emit one ton of nitrogen oxides during a control period 
of thespecified calendar year for which the authorization is allocated 
or ofany calendar year thereafter under the CAIR NOX 
Program.An authorization to emit nitrogen oxides that is not issued 
underprovisions of a State implementation plan that are approved 
underSec. 51.123(o)(1) or (2) or (p) of this chapter or subpartEE of 
part 97 or Sec. 97.188 of this chapter shall not be aCAIR 
NOX allowance.
    CAIR NOX allowance deduction or deductCAIR NOX allowances means the 
permanentwithdrawal of CAIR NOX allowances by the 
Administratorfrom a compliance account, e.g., in order to account for 
aspecified number of tons of total nitrogen oxides emissions from 
allCAIR NOX units at a CAIR NOX source for 
acontrol period, determined in accordance with subpart HH of this

[[Page 734]]

part, or to account for excess emissions.
    CAIR NOX Allowance Tracking System meansthe system by 
which the Administrator records allocations, deductions,and transfers of 
CAIR NOX allowances under the CAIRNOX Annual 
Trading Program. Such allowances will beallocated, held, deducted, or 
transferred only as whole allowances.
    CAIR NOX Allowance Tracking System accountmeans an 
account in the CAIR NOX Allowance Tracking Systemestablished 
by the Administrator for purposes of recording theallocation, holding, 
transferring, or deducting of CAIRNOX allowances.
    CAIR NOX allowances held or hold CAIRNOX 
allowances means the CAIR NOXallowances recorded by the 
Administrator, or submitted to theAdministrator for recordation, in 
accordance with subparts FF, GG, andII of this part, in a CAIR 
NOX Allowance Tracking Systemaccount.
    CAIR NOX Annual Trading Program means amulti-state 
nitrogen oxides air pollution control and emissionreduction program 
approved and administered by the Administrator inaccordance with 
subparts AA through II of this part andSec. 51.123(o)(1) or (2) of this 
chapter or established bythe Administrator in accordance with subparts 
AA through II of part 97of this chapter and Sec. Sec. 51.123(p) and 
52.35 of thischapter, as a means of mitigating interstate transport of 
fineparticulates and nitrogen oxides.
    CAIR NOX emissions limitation means, for aCAIR 
NOX source, the tonnage equivalent, inNOX 
emissions in a control period, of the CAIRNOX allowances 
available for deduction for the sourceunder Sec. 96.154(a) and (b) for 
the control period.
    CAIR NOX Ozone Season source means asource that is 
subject to the CAIR NOX Ozone SeasonTrading Program.
    CAIR NOX Ozone Season Trading Programmeans a multi-state 
nitrogen oxides air pollution control and emissionreduction program 
approved and administered by the Administrator inaccordance with 
subparts AAAA through IIII of this part andSec. 51.123(aa)(1) or (2) 
(and (bb)(1)), (bb)(2), or (dd) ofthis chapter or established by the 
Administrator in accordance withsubparts AAAA through IIII of part 97 of 
this chapter andSec. Sec. 51.123(ee) and 52.35 of this chapter, as a 
meansof mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source thatincludes one or more 
CAIR NOX units.
    CAIR NOX unit means a unit that is subjectto the CAIR 
NOX Annual Trading Program underSec. 96.104 and, except for 
purposes ofSec. 96.105 and subpart EE of this part, a 
CAIRNOX opt-in unit under subpart II of this part.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CC of this part, including anypermit revisions, 
specifying the CAIR NOX Annual TradingProgram requirements 
applicable to a CAIR NOX source, toeach CAIR NOX 
unit at the source, and to the owners andoperators and the CAIR 
designated representative of the source andeach such unit.
    CAIR SO2 source means a source that issubject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur 
dioxide air pollution control and emission reductionprogram approved and 
administered by the Administrator in accordancewith subparts AAA through 
III of this part andSec. 51.124(o)(1) or (2) of this chapter or 
established bythe Administrator in accordance with subparts AAA through 
III of part97 of this chapter and Sec. Sec. 51.124(r) and 52.36 ofthis 
chapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous state) produced by the mechanical, thermal, orchemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EE of this part, combusting 
anyamount of coal or coal-derived fuel, alone or in combination with 
anyamount of any other fuel, during any year; or

[[Page 735]]

    (2) For purposes of subpart EE of this part, combusting anyamount of 
coal or coal-derived fuel, alone or in combination with anyamount of any 
other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit,
    (A) Useful thermal energy not less than 5 percent of total 
energyoutput; and
    (B) Useful power that, when added to one-half of useful 
thermalenergy produced, is not less then 42.5 percent of total energy 
input,if useful thermal energy produced is 15 percent or more of 
totalenergy output, or not less than 45 percent of total energy input, 
ifuseful thermal energy produced is less than 15 percent of total 
energyoutput.
    (ii) For a bottoming-cycle cogeneration unit, useful power notless 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and 
aturbine and in which the flue gas resulting from the combustion offuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to generate electricity for sale or use, including testgeneration, 
except as provided in Sec. 96.105 andSec. 96.184(h).
    (i) For a unit that is a CAIR NOX unit underSec. 96.104 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that subsequently undergoes a physical change(other than replacement of 
the unit by a unit at the same source),such date shall remain the date 
of commencement of commercialoperation of the unit, which shall continue 
to be treated as the sameunit.
    (ii) For a unit that is a CAIR NOX unit underSec. 96.104 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that is subsequently replaced by a unit at thesame source (e.g., 
repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1) or (2) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 96.105, for a unit that is not a CAIRNOX 
unit under Sec. 96.104 on the later ofNovember 15, 1990 or the date the 
unit commences commercial operationas defined in paragraph (1) of this 
definition, the unit's date forcommencement of commercial operation 
shall be the date on which theunit becomes a CAIR NOX unit 
under Sec. 96.104.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement of commercial operation, 
and the replacement unit shallbe treated as a

[[Page 736]]

separate unit with a separate date forcommencement of commercial 
operation as defined in paragraph (1) or(2) of this definition as 
appropriate.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 96.184(h).
    (2) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (3) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date shall remainthe replaced 
unit's date of commencement of operation, and thereplacement unit shall 
be treated as a separate unit with a separatedate for commencement of 
operation as defined in paragraph (1), (2),or (3) of this definition as 
appropriate, except as provided inSec. 96.184(h).
    Compliance account means a CAIR NOX AllowanceTracking 
System account, established by the Administrator for a 
CAIRNOX source under subpart FF or II of this part, in 
whichany CAIR NOX allowance allocations for the 
CAIRNOX units at the source are initially recorded and 
inwhich are held any CAIR NOX allowances available for usefor 
a control period in order to meet the source's CAIRNOX 
emissions limitation in accordance withSec. 96.154.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at leastonce every 15 minutes 
(using an automated data acquisition andhandling system (DAHS)), a 
permanent record of nitrogen oxidesemissions, stack gas volumetric flow 
rate, stack gas moisture content,and oxygen or carbon dioxide 
concentration (as applicable), in amanner consistent with part 75 of 
this chapter. The following systemsare the principal types of continuous 
emission monitoring systemsrequired under subpart HH of this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consistingof 
a NOX pollutant concentration monitor and an automateddata 
acquisition and handling system and providing a permanent,continuous 
record of NOX emissions, in parts per million(ppm);
    (3) A nitrogen oxides emission rate (or NOX-
diluent)monitoring system, consisting of a NOX 
pollutantconcentration monitor, a diluent gas (CO2 
orO2) monitor, and an automated data acquisition andhandling 
system and providing a permanent, continuous record ofNOX 
concentration, in parts per million (ppm), diluent gasconcentration, in 
percent CO2 or O2; andNOX emission 
rate, in pounds per million British thermalunits (lb/mmBtu);
    (4) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (5) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous 
record ofCO2 emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2,in percent O2.
    Control period means the period beginning January 1 of acalendar 
year, except as provided in Sec. 96.106(c)(2), andending on December 31 
of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by

[[Page 737]]

the CAIR designated representative and asdetermined by the Administrator 
in accordance with subpart HH of thispart.
    Excess emissions means any ton of nitrogen oxides emitted bythe CAIR 
NOX units at a CAIR NOX source duringa control 
period that exceeds the CAIR NOX emissionslimitation for the 
source.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including dieselfuel or 
petroleum derivatives such as oil tar) and any recycled orblended 
petroleum products or petroleum by-products used as a fuelwhether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX AllowanceTracking System 
account, established under subpart FF of this part,that is not a 
compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogenerationunit, 
electricity made available for use, including any suchelectricity used 
in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the CAIR designatedrepresentative and 
determined by the Administrator in accordance withsubpart HH of this 
part and excluding the heat derived from preheatedcombustion air, 
recirculated flue gases, or exhaust from othersources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Hg Budget Trading Program means a multi-state Hg airpollution 
control and emission reduction program approved andadministered by the 
Administrator in accordance subpart HHHH of part60 of this chapter and 
Sec. 60.24(h)(6), or established bythe Administrator under section 111 
of the Clean Air Act, as a meansof reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in Btu/hr) that a unit is capable of combusting on a steadystate basis 
as of the initial installation of the unit as specified bythe 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissionslimitation means, with 
regard to a unit, the lowest NOXemissions limitation (in 
terms of lb/mmBtu) that is applicable to theunit under State or Federal 
law, regardless of the averaging period towhich the emissions limitation 
applies.

[[Page 738]]

    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe) that thegenerator is capable of producing on a steady 
state basis and duringcontinuous operation (when not restricted by 
seasonal or otherderatings), such increased maximum amount as of such 
completion asspecified by the person conducting the physical change.
    Oil-fired means, for purposes of subpart EE of this part,combusting 
fuel oil for more than 15.0 percent of the annual heatinput in a 
specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, orsupervises a 
CAIR NOX unit or a CAIR NOXsource and shall 
include, but not be limited to, any holding company,utility system, or 
plant manager of such a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR NOX source or a 
CAIRNOX unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR NOX unit at the source or the CAIR NOXunit;
    (ii) Any holder of a leasehold interest in a CAIR NOXunit 
at the source or the CAIR NOX unit; or
    (iii) Any purchaser of power from a CAIR NOX unit atthe 
source or the CAIR NOX unit under a life-of-the-unit,firm 
power contractual arrangement; provided that, unless expresslyprovided 
for in a leasehold agreement, owner shall not include apassive lessor, 
or a person who has an equitable interest through suchlessor, whose 
rental payments are not based (either directly orindirectly) on the 
revenues or income from such CAIR NOXunit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR NOX 
allowancesheld in the general account and who is subject to the 
bindingagreement for the CAIR authorized account representative to 
representthe person's ownership interest with respect to CAIR 
NOXallowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR NOX Annual Trading Program or, ifno such agency has been 
so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence, by 
the permitting authority or the Administrator inthe regular course of 
business.
    Recordation, record, or recorded means, withregard to CAIR 
NOX allowances, the movement of CAIRNOX allowances 
by the Administrator into or between CAIRNOX Allowance 
Tracking System accounts, for purposes ofallocation, transfer, or 
deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, withregard to a unit, the 
demolishing of a unit, or the permanent shutdownand permanent disabling 
of a unit, and the construction of anotherunit (the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:

[[Page 739]]

    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance of technology in widespread commercial use as of 
January1, 2005.
    Serial number means, for a CAIR NOX allowance,the unique 
identification number assigned to each CAIR NOXallowance by 
the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''
    State means one of the States or the District of Columbiathat adopts 
the CAIR NOX Annual Trading Program pursuantto Sec. 
51.123(o)(1) or (2) of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR NOX emissions limitation, totaltons of nitrogen 
oxides emissions for a control period shall becalculated as the sum of 
all recorded hourly emissions (or the massequivalent of the recorded 
hourly emission rates) in accordance withsubpart HH of this part, but 
with any remaining fraction of a tonequal to or greater than 0.50 tons 
deemed to equal one ton and anyremaining fraction of a ton less than 
0.50 tons deemed to equal zerotons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:

LHV = HHV - 10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.


[[Page 740]]


    Total energy output means, with regard to acogeneration unit, the 
sum of useful power and useful thermal energyproduced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogenerationunit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating ordomestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermalenergy used by 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25380, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006; 72 FR 59205, Oct. 19, 2007]



Sec. 96.103  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BB through II are defined as follows:
Btu--British thermal unit.
CO2--carbon dioxide
H2O--water
Hg--mercury
hr--hour
kW--kilowatt electrical
kWh--kilowatt hour
lb--pound
mmBtu--million Btu
MWe--megawatt electrical
MWh--megawatt hour
NOX--nitrogen oxides
O2--oxygen
ppm--parts per million
scfh--standard cubic feet per hour
SO2--sulfur dioxide
yr--year

[71 FR 25381, Apr. 28, 2006]



Sec. 96.104  Applicability.

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR 
NOXunits, and any source that includes one or more such units 
shall be aCAIR NOX source, subject to the requirements of 
thissubpart and subparts BB through HH of this part: any 
stationary,fossil-fuel-fired boiler or stationary, fossil-fuel-fired 
combustionturbine serving at any time, since the later of November 15, 
1990 orthe start-up of the unit's combustion chamber, a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale.
    (2) If a stationary boiler or stationary combustion turbine 
that,under paragraph (a)(1) of this section, is not a CAIR 
NOXunit begins to combust fossil fuel or to serve a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale,the unit shall become a CAIR NOX unit as provided 
inparagraph (a)(1) of this section on the first date on which it 
bothcombusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR NOX units:
    (1)(i) Any unit that is a CAIR NOX unit underparagraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of

[[Page 741]]

the unit's potential electric outputcapacity or 219,000 MWh, whichever 
is greater, to any utility powerdistribution system for sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR NOX unitstarting on the earlier 
of January 1 after the first calendar yearduring which the unit first no 
longer qualifies as a cogeneration unitor January 1 after the first 
calendar year during which the unit nolonger meets the requirements of 
paragraph (b)(1)(i)(B) of thissection.
    (2)(i) Any unit that is a CAIR NOX unit underparagraph 
(a)(1) or (2) of this section commencing operation beforeJanuary 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX unit under 
paragraph(a)(1) or (2) of this section commencing operation on or after 
January1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the requirements of paragraph (b)(2)(i) or (ii) of this 
sectionfor at least 3 consecutive calendar years, but subsequently no 
longermeets all such requirements, the unit shall become a 
CAIRNOX unit starting on the earlier of January 1 after 
thefirst calendar year during which the unit first no longer qualifies 
asa solid waste incineration unit or January 1 after the first 
3consecutive calendar years after 1990 for which the unit has anaverage 
annual fuel consumption of fossil fuel of 20 percent or more.

[71 FR 25382, Apr. 28, 2006]



Sec. 96.105  Retired unit exemption.

    (a)(1) Any CAIR NOX unit that is permanently retiredand 
is not a CAIR NOX opt-in unit under subpart II of thispart 
shall be exempt from the CAIR NOX Annual TradingProgram, 
except for the provisions of this section,Sec. 96.102, Sec. 96.103, 
Sec. 96.104,Sec. 96.106(c)(4) through (7), Sec. 96.107,Sec. 96.108, 
and subparts BB and EE through GG.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR NOX unit ispermanently 
retired. Within 30 days of the unit's permanentretirement, the CAIR 
designated representative shall submit astatement to the permitting 
authority otherwise responsible foradministering any CAIR permit for the 
unit and shall submit a copy ofthe statement to the Administrator. The 
statement shall state, in aformat prescribed by the permitting 
authority, that the unit waspermanently retired on a specific date and 
will comply with therequirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCC of this part covering the source at which the unit is located 
toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any nitrogen oxides, starting onthe date that the 
exemption takes effect.
    (2) The permitting authority will allocate CAIR 
NOXallowances under subpart EE of this part to a unit exempt 
underparagraph (a) of this section.
    (3) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain, at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records

[[Page 742]]

may be extended for cause, at any time beforethe end of the period, in 
writing by the permitting authority or theAdministrator. The owners and 
operators bear the burden of proof thatthe unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRNOX 
Annual Trading Program concerning all periods forwhich the exemption is 
not in effect, even if such requirements arise,or must be complied with, 
after the exemption takes effect.
    (5) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 96.122for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2009 or thedate on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(5) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(5) of this section to submit a CAIRpermit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the 
CAIRdesignated representative is not required to submit a CAIR 
permitapplication for the unit.
    (7) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HH of this part, a unit 
thatloses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.106  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR NOX source required to have atitle V operating 
permit and each CAIR NOX unit requiredto have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 96.122 in accordance with thedeadlines 
specified in Sec. 96.121; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX 
sourcerequired to have a title V operating permit and each 
CAIRNOX unit required to have a title V operating permit 
atthe source shall have a CAIR permit issued by the permitting 
authorityunder subpart CC of this part for the source and operate the 
sourceand the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart II of this part, the owners 
andoperators of a CAIR NOX source that is not 
otherwiserequired to have a title V operating permit and each 
CAIRNOX unit that is not otherwise required to have a title 
Voperating permit are not required to submit a CAIR permit 
application,and to have a CAIR permit, under subpart CC of this part for 
such CAIRNOX source and such CAIR NOX unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR NOX source and each CAIR NOX unitat the 
source shall comply with the monitoring, reporting, andrecordkeeping 
requirements of subpart HH of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HH of this part shall be used to determine 
compliance byeach CAIR

[[Page 743]]

NOX source with the CAIR NOXemissions limitation 
under paragraph (c) of this section.
    (c) Nitrogen oxides emission requirements. (1) As of theallowance 
transfer deadline for a control period, the owners andoperators of each 
CAIR NOX source and each CAIRNOX unit at the 
source shall hold, in the source'scompliance account, CAIR 
NOX allowances available forcompliance deductions for the 
control period underSec. 96.154(a) in an amount not less than the tons 
of totalnitrogen oxides emissions for the control period from all 
CAIRNOX units at the source, as determined in accordance 
withsubpart HH of this part.
    (2) A CAIR NOX unit shall be subject to therequirements 
under paragraph (c)(1) of this section for the controlperiod starting on 
the later of January 1, 2009 or the deadline formeeting the unit's 
monitor certification requirements underSec. 96.170(b)(1), (2), or (5) 
and for each control periodthereafter.
    (3) A CAIR NOX allowance shall not be deducted, 
forcompliance with the requirements under paragraph (c)(1) of 
thissection, for a control period in a calendar year before the year 
forwhich the CAIR NOX allowance was allocated.
    (4) CAIR NOX allowances shall be held in, deductedfrom, 
or transferred into or among CAIR NOX AllowanceTracking 
System accounts in accordance with subparts FF, GG, and II ofthis part.
    (5) A CAIR NOX allowance is a limited authorization 
toemit one ton of nitrogen oxides in accordance with the 
CAIRNOX Annual Trading Program. No provision of the 
CAIRNOX Annual Trading Program, the CAIR permit 
application,the CAIR permit, or an exemption under Sec. 96.105 and 
noprovision of law shall be construed to limit the authority of theState 
or the United States to terminate or limit such authorization.
    (6) A CAIR NOX allowance does not constitute aproperty 
right.
    (7) Upon recordation by the Administrator under subpart EE, FF,GG, 
or II of this part, every allocation, transfer, or deduction of aCAIR 
NOX allowance to or from a CAIR NOXsource's 
compliance account is incorporated automatically in any CAIRpermit of 
the source.
    (d) Excess emissions requirements. If a CAIR NOXsource 
emits nitrogen oxides during any control period in excess ofthe CAIR 
NOX emissions limitation, then:
    (1) The owners and operators of the source and each 
CAIRNOX unit at the source shall surrender the 
CAIRNOX allowances required for deduction underSec. 
96.154(d)(1) and pay any fine, penalty, or assessmentor comply with any 
other remedy imposed, for the same violations,under the Clean Air Act or 
applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRNOX source and 
each CAIR NOX unit at thesource shall keep on site at the 
source each of the followingdocuments for a period of 5 years from the 
date the document iscreated. This period may be extended for cause, at 
any time before theend of 5 years, in writing by the permitting 
authority or theAdministrator.
    (i) The certificate of representation under Sec. 96.113for the CAIR 
designated representative for the source and each CAIRNOX 
unit at the source and all documents that demonstratethe truth of the 
statements in the certificate of representation;provided that the 
certificate and documents shall be retained on siteat the source beyond 
such 5-year period until such documents aresuperseded because of the 
submission of a new certificate ofrepresentation under Sec. 96.113 
changing the CAIRdesignated representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HH of this part, provided that to the extent that subpart HHof this part 
provides for a 3-year period for recordkeeping, the 3-year period shall 
apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
CAIRNOX Annual Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the

[[Page 744]]

CAIRNOX Annual Trading Program or to demonstrate 
compliancewith the requirements of the CAIR NOX Annual 
TradingProgram.
    (2) The CAIR designated representative of a CAIR 
NOXsource and each CAIR NOX unit at the source 
shall submitthe reports required under the CAIR NOX Annual 
TradingProgram, including those under subpart HH of this part.
    (f) Liability. (1) Each CAIR NOX source and eachCAIR 
NOX unit shall meet the requirements of the 
CAIRNOX Annual Trading Program.
    (2) Any provision of the CAIR NOX Annual TradingProgram 
that applies to a CAIR NOX source or the CAIRdesignated 
representative of a CAIR NOX source shall alsoapply to the 
owners and operators of such source and of the CAIRNOX units 
at the source.
    (3) Any provision of the CAIR NOX Annual TradingProgram 
that applies to a CAIR NOX unit or the CAIRdesignated 
representative of a CAIR NOX unit shall alsoapply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the 
CAIRNOX Annual Trading Program, a CAIR permit application, 
aCAIR permit, or an exemption under Sec. 96.105 shall beconstrued as 
exempting or excluding the owners and operators, and theCAIR designated 
representative, of a CAIR NOX source orCAIR NOX 
unit from compliance with any other provision ofthe applicable, approved 
State implementation plan, a federallyenforceable permit, or the Clean 
Air Act.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr.28, 2006]



Sec. 96.107  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Annual Trading Program, to begin on theoccurrence 
of an act or event shall begin on the day the act or eventoccurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Annual Trading Program, to begin before 
theoccurrence of an act or event shall be computed so that the 
periodends the day before the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR NOX Annual Trading Program, falls on 
aweekend or a State or Federal holiday, the time period shall beextended 
to the next business day.



Sec. 96.108  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR NOX Annual Trading Program are set forth in part 78of 
this chapter.



      Subpart BB_CAIR Designated Representative for CAIRNOX Sources

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.110  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 96.111, each CAIRNOX 
source, including all CAIR NOX units atthe source, shall have 
one and only one CAIR designatedrepresentative, with regard to all 
matters under the CAIRNOX Annual Trading Program concerning 
the source or anyCAIR NOX unit at the source.
    (b) The CAIR designated representative of the CAIR 
NOXsource shall be selected by an agreement binding on the 
owners andoperators of the source and all CAIR NOX units at 
thesource and shall act in accordance with the certification statement 
inSec. 96.113(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.113, the CAIR designatedrepresentative 
of the source shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachowner and operator 
of the CAIR NOX source represented andeach CAIR 
NOX unit at the source in all matters pertainingto the CAIR 
NOX Annual Trading Program, notwithstandingany agreement 
between the CAIR designated representative and suchowners and operators. 
The owners and operators shall be bound by anydecision or order issued 
to the CAIR designated representative by thepermitting authority, the 
Administrator, or a court regarding thesource or unit.

[[Page 745]]

    (d) No CAIR permit will be issued, no emissions data reportswill be 
accepted, and no CAIR NOX Allowance TrackingSystem account 
will be established for a CAIR NOX unit ata source, until the 
Administrator has received a complete certificateof representation under 
Sec. 96.113 for a CAIR designatedrepresentative of the source and the 
CAIR NOX units at thesource.
    (e)(1) Each submission under the CAIR NOX AnnualTrading 
Program shall be submitted, signed, and certified by the CAIRdesignated 
representative for each CAIR NOX source onbehalf of which the 
submission is made. Each such submission shallinclude the following 
certification statement by the CAIR designatedrepresentative: ``I am 
authorized to make this submission onbehalf of the owners and operators 
of the source or units for whichthe submission is made. I certify under 
penalty of law that I havepersonally examined, and am familiar with, the 
statements andinformation submitted in this document and all its 
attachments. Basedon my inquiry of those individuals with primary 
responsibility forobtaining the information, I certify that the 
statements andinformation are to the best of my knowledge and belief 
true, accurate,and complete. I am aware that there are significant 
penalties forsubmitting false statements and information or omitting 
requiredstatements and information, including the possibility of fine 
orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRNOX source or a CAIR NOX unit only if 
thesubmission has been made, signed, and certified in accordance 
withparagraph (e)(1) of this section.



Sec. 96.111  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.113may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.113, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.
    (c) Except in this section and Sec. Sec. 96.102,96.110(a) and (d), 
96.112, 96.113, 96.115, 96.151, and 96.182,whenever the term ``CAIR 
designated representative'' isused in subparts AA through II of this 
part, the term shall beconstrued to include the CAIR designated 
representative or anyalternate CAIR designated representative.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr.28, 2006]



Sec. 96.112  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any time upon receipt bythe 
Administrator of a superseding complete certificate ofrepresentation 
under Sec. 96.113. Notwithstanding any suchchange, all representations, 
actions, inactions, and submissions bythe previous CAIR designated 
representative before the time and datewhen the Administrator receives 
the superseding certificate ofrepresentation shall be binding on the new 
CAIR designatedrepresentative and the owners and operators of the 
CAIRNOX source and the CAIR NOX units at 
thesource.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under Sec. 96.113.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative

[[Page 746]]

andthe owners and operators of the CAIR NOX source and 
theCAIR NOX units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR NOX source or a CAIRNOX unit is 
not included in the list of owners andoperators in the certificate of 
representation underSec. 96.113, such owner or operator shall be deemed 
to besubject to and bound by the certificate of representation, 
therepresentations, actions, inactions, and submissions of the 
CAIRdesignated representative and any alternate CAIR 
designatedrepresentative of the source or unit, and the decisions and 
orders ofthe permitting authority, the Administrator, or a court, as if 
theowner or operator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR NOX source or a CAIR NOXunit, including 
the addition of a new owner or operator, the CAIRdesignated 
representative or any alternate CAIR designatedrepresentative shall 
submit a revision to the certificate ofrepresentation under Sec. 96.113 
amending the list of ownersand operators to include the change.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr.28, 2006]



Sec. 96.113  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR NOX source, and eachCAIR 
NOX unit at the source, for which the certificate 
ofrepresentation is submitted, including identification and 
nameplatecapacity of each generator served by each such unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
NOXsource and of each CAIR NOX unit at the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR NOX unit at the source.''
    (ii) ``I certify that I have all the necessary authority tocarry out 
my duties and responsibilities under the CAIRNOX Annual 
Trading Program on behalf of the owners andoperators of the source and 
of each CAIR NOX unit at thesource and that each such owner 
and operator shall be fully bound bymy representations, actions, 
inactions, or submissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR NOX unit at the source shall bebound by any order 
issued to me by the Administrator, the permittingauthority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal orequitable title 
to, or a leasehold interest in, a CAIR NOXunit, or where a 
utility or industrial customer purchases power from aCAIR NOX 
unit under a life-of-the-unit, firm powercontractual arrangement, I 
certify that: I have given a written noticeof my selection as the `CAIR 
designated representative'or `alternate CAIR designated representative', 
asapplicable, and of the agreement by which I was selected to each 
ownerand operator of the source and of each CAIR NOX unit 
atthe source; and CAIR NOX allowances and proceeds 
oftransactions involving CAIR NOX allowances will be deemedto 
be held or distributed in proportion to each holder's legal,equitable, 
leasehold, or contractual reservation or entitlement,except that, if 
such multiple holders have expressly provided for adifferent 
distribution of CAIR NOX allowances by contract,CAIR 
NOX allowances and proceeds of transactions involvingCAIR 
NOX allowances will be deemed to be held ordistributed in 
accordance with the contract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.

[[Page 747]]

    (b) Unless otherwise required by the permitting authority orthe 
Administrator, documents of agreement referred to in thecertificate of 
representation shall not be submitted to the permittingauthority or the 
Administrator. Neither the permitting authority northe Administrator 
shall be under any obligation to review or evaluatethe sufficiency of 
such documents, if submitted.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr.28, 2006]



Sec. 96.114  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 96.113 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
96.113 is received by theAdministrator.
    (b) Except as provided in Sec. 96.112(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
NOX Annual Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR NOX allowance transfers.



Sec. 96.115  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (a) or(b) of this 
section, the CAIR designated representative or alternateCAIR designated 
representative, as appropriate, must submit to theAdministrator a notice 
of delegation, in a format prescribed by theAdministrator, that includes 
the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate CAIR designated 
representative, as appropriate, andbefore this notice of delegation is 
superseded by another notice ofdelegation under 40 CFR 96.115(d) shall 
be deemed to be an electronicsubmission by me.''
    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 96.115(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
96.115 is terminated.''
    (d) A notice of delegation submitted under paragraph (c) of 
thissection

[[Page 748]]

shall be effective, with regard to the CAIR designatedrepresentative or 
alternate CAIR designated representative identifiedin such notice, upon 
receipt of such notice by the Administrator anduntil receipt by the 
Administrator of a superseding notice ofdelegation submitted by such 
CAIR designated representative oralternate CAIR designated 
representative, as appropriate. Thesuperseding notice of delegation may 
replace any previously identifiedagent, add a new agent, or eliminate 
entirely any delegation ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.

[71 FR 25382, Apr. 28, 2006, as amended at 71 FR 74794, Dec.13, 2006]



                           Subpart CC_Permits

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.120  General CAIR NOX Annual Trading Program permitrequirements.

    (a) For each CAIR NOX source required to have a titleV 
operating permit or required, under subpart II of this part, to havea 
title V operating permit or other federally enforceable permit, 
suchpermit shall include a CAIR permit administered by the 
permittingauthority for the title V operating permit or the 
federallyenforceable permit as applicable. The CAIR portion of the title 
Vpermit or other federally enforceable permit as applicable shall 
beadministered in accordance with the permitting authority's title 
Voperating permits regulations promulgated under part 70 or 71 of 
thischapter or the permitting authority's regulations for other 
federallyenforceable permits as applicable, except as provided otherwise 
bySec. 96.105, this subpart, and subpart II of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRNOX source and the CAIR NOX units at thesource 
covered by the CAIR permit, all applicable CAIR NOXAnnual 
Trading Program, CAIR NOX Ozone Season TradingProgram, and 
CAIR SO2 Trading Program requirements andshall be a complete 
and separable portion of the title V operatingpermit or other federally 
enforceable permit under paragraph (a) ofthis section.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006]



Sec. 96.121  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
NOX source required to have a title V operatingpermit shall 
submit to the permitting authority a complete CAIR permitapplication 
under Sec. 96.122 for the source covering eachCAIR NOX unit 
at the source at least 18 months (or suchlesser time provided by the 
permitting authority) before the later ofJanuary 1, 2009 or the date on 
which the CAIR NOX unitcommences commercial operation, except 
as provided inSec. 96.183(a).
    (b) Duty to Reapply. For a CAIR NOX sourcerequired to 
have a title V operating permit, the CAIR designatedrepresentative shall 
submit a complete CAIR permit application underSec. 96.122 for the 
source covering each CAIRNOX unit at the source to renew the 
CAIR permit inaccordance with the permitting authority's title V 
operating permitsregulations addressing permit renewal, except as 
provided inSec. 96.183(b).

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006]



Sec. 96.122  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR NOX source for which 
theapplication is submitted, in a format prescribed by the 
permittingauthority:
    (a) Identification of the CAIR NOX source;
    (b) Identification of each CAIR NOX unit at the 
CAIRNOX source; and
    (c) The standard requirements under Sec. 96.106.

[[Page 749]]



Sec. 96.123  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all elements required for a complete CAIR 
permitapplication under Sec. 96.122.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 96.102 and, upon recordationby the 
Administrator under subpart EE, FF, GG, or II of this part,every 
allocation, transfer, or deduction of a CAIR NOXallowance to 
or from the compliance account of the CAIRNOX source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRNOX source's title V operating permit or other 
federallyenforceable permit as applicable.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006]



Sec. 96.124  CAIR permit revisions.

    Except as provided in Sec. 96.123(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subpart DD [Reserved]



                Subpart EE_CAIR NOX Allowance Allocations

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.140  State trading budgets.

    The State trading budgets for annual allocations of 
CAIRNOX allowances for the control periods in 2009 
through2014 and in 2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                        State trading     State trading
                                       budget for2009-   budget for 2015
                State                    2014 (tons)      andthereafter
                                                             (tons)
------------------------------------------------------------------------
Alabama.............................            69,020            57,517
Delaware............................             4,166             3,472
District of Columbia................               144               120
Florida.............................            99,445            82,871
Georgia.............................            66,321            55,268
Illinois............................            76,230            63,525
Indiana.............................           108,935            90,779
Iowa................................            32,692            27,243
Kentucky............................            83,205            69,337
Louisiana...........................            35,512            29,593
Maryland............................            27,724            23,104
Michigan............................            65,304            54,420
Minnesota...........................            31,443            26,203
Mississippi.........................            17,807            14,839
Missouri............................            59,871            49,892
New Jersey..........................            12,670            10,558
New York............................            45,617            38,014
North Carolina......................            62,183            51,819
Ohio................................           108,667            90,556
Pennsylvania........................            99,049            82,541
South Carolina......................            32,662            27,219
Tennessee...........................            50,973            42,478
Texas...............................           181,014           150,845
Virginia............................            36,074            30,062
West Virginia.......................            74,220            61,850
Wisconsin...........................            40,759            33,966
------------------------------------------------------------------------


[70 FR 25339, May 12, 2005, as amended at 71 FR 25302, Apr.28, 2006]



Sec. 96.141  Timing requirements for CAIR NOX allowance allocations.

    (a) By October 31, 2006, the permitting authority will submit tothe 
Administrator the CAIR NOX allowance allocations, in aformat 
prescribed by the Administrator and in accordance withSec. 96.142(a) 
and (b), for the control periods in 2009,2010, 2011, 2012, 2013, and 
2014.
    (b) By October 31, 2009 and October 31 of each year thereafter,the 
permitting authority will submit to the Administrator the 
CAIRNOX allowance allocations, in a format prescribed by 
theAdministrator and in accordance with Sec. 96.142(a) and (b),for the 
control period in the sixth year after the year of theapplicable 
deadline for submission under this paragraph.
    (c) By October 31, 2009 and October 31 of each year thereafter,the 
permitting authority will submit to the Administrator the 
CAIRNOX allowance allocations, in a format prescribed by 
theAdministrator and in accordance with Sec. 96.142(a), (c),and (d), 
for the control period in the year of the applicable deadlinefor 
submission under this paragraph.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006]

[[Page 750]]



Sec. 96.142  CAIR NOX allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect toCAIR 
NOX allowance allocations under paragraph (b) of thissection 
for each CAIR NOX unit will be:
    (i) For units commencing operation before January 1, 2001 theaverage 
of the 3 highest amounts of the unit's adjusted control periodheat input 
for 2000 through 2004, with the adjusted control periodheat input for 
each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 60 percent; and
    (C) If the unit is not subject to paragraph (a)(1)(i)(A) or (B) 
ofthis section, the unit's control period heat input for such year 
ismultiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001and 
operating each calendar year during a period of 5 or moreconsecutive 
calendar years, the average of the 3 highest amounts ofthe unit's total 
converted control period heat input over the firstsuch 5 years.
    (2)(i) A unit's control period heat input, and a unit's status 
ascoal-fired or oil-fired, for a calendar year under paragraph 
(a)(1)(i)of this section, and a unit's total tons of NOX 
emissionsduring a calendar year under paragraph (c)(3) of this section, 
will bedetermined in accordance with part 75 of this chapter, to the 
extentthe unit was otherwise subject to the requirements of part 75 of 
thischapter for the year, or will be based on the best available 
datareported to the permitting authority for the unit, to the extent 
theunit was not otherwise subject to the requirements of part 75 of 
thischapter for the year.
    (ii) A unit's converted control period heat input for a calendaryear 
specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of 
thissection, the control period gross electrical output of the 
generatoror generators served by the unit multiplied by 7,900 Btu/kWh, 
if theunit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is 
notcoal-fired for the year, and divided by 1,000,000 Btu/mmBtu, 
providedthat if a generator is served by 2 or more units, then the 
grosselectrical output of the generator will be attributed to each unit 
inproportion to the unit's share of the total control period heat 
inputof such units for the year;
    (B) For a unit that is a boiler and has equipment used to 
produceelectricity and useful thermal energy for industrial, 
commercial,heating, or cooling purposes through the sequential use of 
energy, thetotal heat energy (in Btu) of the steam produced by the 
boiler duringthe control period, divided by 0.8 and by 1,000,000 Btu/
mmBtu; or
    (C) For a unit that is a combustion turbine and has equipment usedto 
produce electricity and useful thermal energy for industrial,commercial, 
heating, or cooling purposes through the sequential use ofenergy, the 
control period gross electrical output of the encloseddevice comprising 
the compressor, combustor, and turbine multiplied by3,413 Btu/kWh, plus 
the total heat energy (in Btu) of the steamproduced by any associated 
heat recovery steam generator during thecontrol period divided by 0.8, 
and with the sum divided by 1,000,000Btu/mmBtu.
    (b)(1) For each control period in 2009 and thereafter, thepermitting 
authority will allocate to all CAIR NOX unitsin the State 
that have a baseline heat input (as determined underparagraph (a) of 
this section) a total amount of CAIR NOXallowances equal to 
95 percent for a control period during 2009through 2014, and 97 percent 
for a control period during 2015 andthereafter, of the tons of 
NOX emissions in the Statetrading budget under Sec. 96.140 
(except as provided inparagraph (d) of this section).
    (2) The permitting authority will allocate CAIR 
NOXallowances to each CAIR NOX unit under 
paragraph (b)(1) ofthis section in an amount determined by multiplying 
the total amountof CAIR NOX allowances allocated under 
paragraph (b)(1) ofthis section by the ratio of the baseline heat input 
of such CAIRNOX unit to the total amount of baseline heat 
input of all

[[Page 751]]

such CAIR NOX units in the State and rounding to thenearest 
whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the 
permittingauthority will allocate CAIR NOX allowances to 
CAIRNOX units in a State that are not allocated 
CAIRNOX allowances under paragraph (b) of this section 
becausethe units do not yet have a baseline heat input under paragraph 
(a) ofthis section or because the units have a baseline heat input but 
allCAIR NOX allowances available under paragraph (b) of 
thissection for the control period are already allocated, in 
accordancewith the following procedures:
    (1) The permitting authority will establish a separate new unitset-
aside for each control period. Each new unit set-aside will beallocated 
CAIR NOX allowances equal to 5 percent for acontrol period in 
2009 through 2014, and 3 percent for a controlperiod in 2015and 
thereafter, of the amount of tons of NOXemissions in the 
State trading budget under Sec. 96.140.
    (2) The CAIR designated representative of such a CAIRNOX 
unit may submit to the permitting authority a request,in a format 
specified by the permitting authority, to be allocatedCAIR 
NOX allowances, starting with the later of thecontrol period 
in 2009 or the first control period after the controlperiod in which the 
CAIR NOX unit commences commercialoperation and until the 
first control period for which the unit isallocated CAIR NOX 
allowances under paragraph (b) of thissection. A separate CAIR 
NOX allowance allocation requestfor each control period for 
which CAIR NOX allowances aresought must be submitted on or 
before May 1 of such control period andafter the date on which the CAIR 
NOX unit commencescommercial operation.
    (3) In a CAIR NOX allowance allocation request 
underparagraph (c)(2) of this section, the CAIR designated 
representativemay request for a control period CAIR NOX 
allowances in anamount not exceeding the CAIR NOX unit's 
total tons ofNOX emissions during the calendar year 
immediately beforesuch control period.
    (4) The permitting authority will review each CAIR 
NOXallowance allocation request under paragraph (c)(2) of 
this sectionand will allocate CAIR NOX allowances for each 
controlperiod pursuant to such request as follows:
    (i) The permitting authority will accept an allowance 
allocationrequest only if the request meets, or is adjusted by the 
permittingauthority as necessary to meet, the requirements of paragraphs 
(c)(2)and (3) of this section.
    (ii) On or after May 1 of the control period, the 
permittingauthority will determine the sum of the CAIR 
NOXallowances requested (as adjusted under paragraph 
(c)(4)(i) of thissection) in all allowance allocation requests accepted 
under paragraph(c)(4)(i) of this section for the control period.
    (iii) If the amount of CAIR NOX allowances in the newunit 
set-aside for the control period is greater than or equal to thesum 
under paragraph (c)(4)(ii) of this section, then the permittingauthority 
will allocate the amount of CAIR NOX allowancesrequested (as 
adjusted under paragraph (c)(4)(i) of this section) toeach CAIR 
NOX unit covered by an allowance allocationrequest accepted 
under paragraph (c)(4)(i) of this section.
    (iv) If the amount of CAIR NOX allowances in the newunit 
set-aside for the control period is less than the sum underparagraph 
(c)(4)(ii) of this section, then the permitting authoritywill allocate 
to each CAIR NOX unit covered by anallowance allocation 
request accepted under paragraph (c)(4)(i) ofthis section the amount of 
the CAIR NOX allowancesrequested (as adjusted under paragraph 
(c)(4)(i) of this section),multiplied by the amount of CAIR 
NOX allowances in the newunit set-aside for the control 
period, divided by the sum determinedunder paragraph (c)(4)(ii) of this 
section, and rounded to the nearestwhole allowance as appropriate.
    (v) The permitting authority will notify each CAIR 
designatedrepresentative that submitted an allowance allocation request 
of theamount of CAIR NOX allowances (if any) allocated for 
thecontrol period to the CAIR NOX unit covered by therequest.
    (d) If, after completion of the procedures under paragraph (c)(4)of 
this section for a control period, any

[[Page 752]]

unallocated CAIRNOX allowances remain in the new unit set-
aside for thecontrol period, the permitting authority will allocate to 
each CAIRNOX unit that was allocated CAIR 
NOXallowances under paragraph (b) of this section an amount 
of CAIRNOX allowances equal to the total amount of such 
remainingunallocated CAIR NOX allowances, multiplied by the 
unit'sallocation under paragraph (b) of this section, divided by 95 
percentfor a control period during 2009 through 2014, and 97 percent for 
acontrol period during 2015 and thereafter, of the amount of tons 
ofNOX emissions in the State trading budget underSec. 
96.140, and rounded to the nearest whole allowance asappropriate.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006]



Sec. 96.143  Compliance supplement pool.

    (a) In addition to the CAIR NOX allowances allocatedunder 
Sec. 96.142, the permitting authority may allocate forthe control 
period in 2009 up to the following amount of CAIRNOX 
allowances to CAIR NOX units in therespective State:

------------------------------------------------------------------------
                                                              Compliance
                           State                              supplement
                                                                 pool
------------------------------------------------------------------------
Alabama....................................................       10,166
Delaware...................................................          843
District Of Columbia.......................................            0
Florida....................................................        8,335
Georgia....................................................       12,397
Illinois...................................................       11,299
Indiana....................................................       20,155
Iowa.......................................................        6,978
Kentucky...................................................       14,935
Louisiana..................................................        2,251
Maryland...................................................        4,670
Michigan...................................................        8,347
Minnesota..................................................        6,528
Mississippi................................................        3,066
Missouri...................................................        9,044
New Jersey.................................................          660
New York...................................................            0
North Carolina.............................................            0
Ohio.......................................................       25,037
Pennsylvania...............................................       16,009
South Carolina.............................................        2,600
Tennessee..................................................        8,944
Texas......................................................          772
Virginia...................................................        5,134
West Virginia..............................................       16,929
Wisconsin..................................................        4,898
------------------------------------------------------------------------

    (b) For any CAIR NOX unit in the State that 
achievesNOX emission reductions in 2007 and 2008 that are 
notnecessary to comply with any State or federal emissions 
limitationapplicable during such years, the CAIR designated 
representative ofthe unit may request early reduction credits, and 
allocation of CAIRNOX allowances from the compliance 
supplement pool underparagraph (a) of this section for such early 
reduction credits, inaccordance with the following:
    (1) The owners and operators of such CAIR NOX unitshall 
monitor and report the NOX emissions rate and theheat input 
of the unit in accordance with subpart HH of this part ineach control 
period for which early reduction credit is requested.
    (2) The CAIR designated representative of such CAIRNOX 
unit shall submit to the permitting authority by May1, 2009 a request, 
in a format specified by the permitting authority,for allocation of an 
amount of CAIR NOX allowances fromthe compliance supplement 
pool not exceeding the sum of the amounts(in tons) of the unit's 
NOX emission reductions in 2007and 2008 that are not 
necessary to comply with any State or federalemissions limitation 
applicable during such years, determined inaccordance with subpart HH of 
this part.
    (c) For any CAIR NOX unit in the State whosecompliance 
with the CAIR NOX emissions limitation for thecontrol period 
in 2009 would create an undue risk to the reliabilityof electricity 
supply during such control period, the CAIR designatedrepresentative of 
the unit may request the allocation of CAIRNOX allowances 
from the compliance supplement pool underparagraph (a) of this section, 
in accordance with the following:
    (1) The CAIR designated representative of such CAIRNOX 
unit shall submit to the permitting authority by May1, 2009 a request, 
in a format specified by the permitting authority,for allocation of an 
amount of CAIR NOX allowances fromthe compliance supplement 
pool not exceeding the minimum amount ofCAIR NOX allowances 
necessary to remove such undue risk tothe reliability of electricity 
supply.
    (2) In the request under paragraph (c)(1) of this section, theCAIR 
designated representative of such CAIR NOX unit 
shalldemonstrate that, in the absence of allocation to the unit of

[[Page 753]]

theamount of CAIR NOX allowances requested, the 
unit'scompliance with the CAIR NOX emissions limitation for 
thecontrol period in 2009 would create an undue risk to the 
reliabilityof electricity supply during such control period. This 
demonstrationmust include a showing that it would not be feasible for 
the ownersand operators of the unit to:
    (i) Obtain a sufficient amount of electricity from otherelectricity 
generation facilities, during the installation of controltechnology at 
the unit for compliance with the CAIR NOXemissions 
limitation, to prevent such undue risk; or
    (ii) Obtain under paragraphs (b) and (d) of this section, 
orotherwise obtain, a sufficient amount of CAIR NOXallowances 
to prevent such undue risk.
    (d) The permitting authority will review each request underparagraph 
(b) or (c) of this section submitted by May 1, 2009 and willallocate 
CAIR NOX allowances for the control period in2009 to CAIR 
NOX units in the State and covered by suchrequest as follows:
    (1) Upon receipt of each such request, the permitting authoritywill 
make any necessary adjustments to the request to ensure that theamount 
of the CAIR NOX allowances requested meets therequirements of 
paragraph (b) or (c) of this section.
    (2) If the State's compliance supplement pool under paragraph (a)of 
this section has an amount of CAIR NOX allowances notless 
than the total amount of CAIR NOX allowances in allsuch 
requests (as adjusted under paragraph (d)(1) of this section),the 
permitting authority will allocate to each CAIR NOXunit 
covered by such requests the amount of CAIR NOXallowances 
requested (as adjusted under paragraph (d)(1) of thissection).
    (3) If the State's compliance supplement pool under paragraph (a)of 
this section has a smaller amount of CAIR NOXallowances than 
the total amount of CAIR NOX allowances inall such requests 
(as adjusted under paragraph (d)(1) of thissection), the permitting 
authority will allocate CAIR NOXallowances to each CAIR 
NOX unit covered by such requestsaccording to the following 
formula and rounding to the nearest wholeallowance as appropriate:

Unit's allocation = Unit's adjusted allocation x (State'scompliance 
    supplement pool / Total adjusted allocations forall units)

Where:

    `Unit's allocation' is the amount of CAIRNOX allowances 
allocated to the unit from the State'scompliance supplement pool. Unit's 
adjusted allocation'' is theamount of CAIR NOX allowances 
requested for the unit underparagraph (b) or (c) of this section, as 
adjusted under paragraph (d)(1) of this section. ``State's compliance 
supplementpool'' is the amount of CAIR NOX allowances in 
theState's compliance supplement pool. ``Total adjusted allocationsfor 
all units'' is the sum of the amounts of allocationsrequested for all 
units under paragraph (b) or (c) of this section, asadjusted under 
paragraph (d)(1) of this section.

    (4) By November 30, 2009, the permitting authority will 
determine,and submit to the Administrator, the allocations under 
paragraph (d)(2) or (3)of this section.
    (5) By January 1, 2010, the Administrator will record theallocations 
under paragraph (d)(4) of this section.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25302 and25383, Apr. 28, 
2006; 71 FR 74794, Dec. 13, 2006]



              Subpart FF_CAIR NOX Allowance Tracking System

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.150  [Reserved]



Sec. 96.151  Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 96.184(e), upon 
receipt of a complete certificate ofrepresentation under Sec. 96.113, 
the Administrator willestablish a compliance account for the CAIR 
NOX source forwhich the certificate of representation was 
submitted unless thesource already has a compliance account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR NOX allowances.An application for a general 
account may designate

[[Page 754]]

one and onlyone CAIR authorized account representative and one and only 
onealternate CAIR authorized account representative who may act on 
behalfof the CAIR authorized account representative. The agreement by 
whichthe alternate CAIR authorized account representative is selected 
shallinclude a procedure for authorizing the alternate CAIR 
authorizedaccount representative to act in lieu of the CAIR authorized 
accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of the CAIRauthorized account 
representative and any alternate CAIR authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR NOX allowances held inthe general account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount representative, as applicable, by an agreement that is 
bindingon all persons who have an ownership interest with respect to 
CAIRNOX allowances held in the general account. I certify 
thatI have all the necessary authority to carry out my duties 
andresponsibilities under the CAIR NOX Annual Trading 
Programon behalf of such persons and that each such person shall be 
fullybound by my representations, actions, inactions, or submissions and 
byany order or decision issued to me by the Administrator or a 
courtregarding the general account.''
    (E) The signature of the CAIR authorized account representativeand 
any alternate CAIR authorized account representative and the 
datessigned.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receiptby 
the Administrator of a complete application for a general accountunder 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR NOX allowances held in the generalaccount in all matters 
pertaining to the CAIR NOX AnnualTrading Program, 
notwithstanding any agreement between the CAIRauthorized account 
representative or any alternate CAIR authorizedaccount representative 
and such person. Any such person shall be boundby any order or decision 
issued to the CAIR authorized accountrepresentative or any alternate 
CAIR authorized account representativeby the Administrator or a court 
regarding the general account.
    (C) Any representation, action, inaction, or submission by 
anyalternate CAIR authorized account representative shall be deemed to 
bea representation, action, inaction, or submission by the 
CAIRauthorized account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to

[[Page 755]]

CAIRNOX allowances held in the general account. Each 
suchsubmission shall include the following certification statement by 
theCAIR authorized account representative or any alternate 
CAIRauthorized account representative: ``I am authorized to makethis 
submission on behalf of the persons having an ownership interestwith 
respect to the CAIR NOX allowances held in thegeneral 
account. I certify under penalty of law that I have personallyexamined, 
and am familiar with, the statements and informationsubmitted in this 
document and all its attachments. Based on myinquiry of those 
individuals with primary responsibility for obtainingthe information, I 
certify that the statements and information are tothe best of my 
knowledge and belief true, accurate, and complete. I amaware that there 
are significant penalties for submitting falsestatements and information 
or omitting required statements andinformation, including the 
possibility of fine orimprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by the Administrator of a 
superseding complete application fora general account under paragraph 
(b)(1) of this section.Notwithstanding any such change, all 
representations, actions,inactions, and submissions by the previous CAIR 
authorized accountrepresentative before the time and date when the 
Administratorreceives the superseding application for a general account 
shall bebinding on the new CAIR authorized account representative and 
thepersons with an ownership interest with respect to the 
CAIRNOX allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a superseding complete application for a 
generalaccount under paragraph (b)(1) of this section. Notwithstanding 
anysuch change, all representations, actions, inactions, and 
submissionsby the previous alternate CAIR authorized account 
representativebefore the time and date when the Administrator receives 
thesuperseding application for a general account shall be binding on 
thenew alternate CAIR authorized account representative and the 
personswith an ownership interest with respect to the CAIR 
NOXallowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR NOX allowances in the general account 
isnot included in the list of such persons in the application for 
ageneral account, such person shall be deemed to be subject to andbound 
by the application for a general account, the representation,actions, 
inactions, and submissions of the CAIR authorized accountrepresentative 
and any alternate CAIR authorized accountrepresentative of the account, 
and the decisions and orders of theAdministrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR NOX allowances 
inthe general account, including the addition of a new person, the 
CAIRauthorized account representative or any alternate CAIR 
authorizedaccount representative shall submit a revision to the 
application fora general account amending the list of persons having an 
ownershipinterest with respect to the CAIR NOX allowances in 
thegeneral account to include the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.

[[Page 756]]

    (ii) Except as provided in paragraph (b)(3)(i) or (ii) ofthis 
section, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternate CAIR authorized account representative or 
thefinality of any decision or order by the Administrator under the 
CAIRNOX Annual Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate 
CAIR authorized account representative for a generalaccount, including 
private legal disputes concerning the proceeds ofCAIR NOX 
allowance transfers.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
theAdministrator provided for or required under subparts FF and GG 
ofthis part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FF and GG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR authorized 
accountrepresentative or alternate CAIR authorized account 
representative;
    (B) The name, address, e-mail address, telephone number, 
and,facsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 96.151(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``Until this notice of delegation is supersededby 
another notice of delegation under 40 CFR 96.151 (b)(5)(iv), Iagree to 
maintain an e-mail account and to notify the Administratorimmediately of 
any change in my e-mail address unless all delegationof authority by me 
under 40 CFR 96.151 (b)(5) is terminated.''
    (iv) A notice of delegation submitted under paragraph (b)(5)(iii)of 
this section shall be effective, with regard to the CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted

[[Page 757]]

by such CAIRauthorized account representative or alternate CAIR 
authorized accountrepresentative, as appropriate. The superseding notice 
of delegationmay replace any previously identified agent, add a new 
agent, oreliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.152  Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR NOX 
AllowanceTracking System account, all submissions to the 
Administratorpertaining to the account, including, but not limited to, 
submissionsconcerning the deduction or transfer of CAIR 
NOXallowances in the account, shall be made only by the CAIR 
authorizedaccount representative for the account.



Sec. 96.153  Recordation of CAIR NOX allowance allocations.

    (a) By September 30, 2007, the Administrator will record in theCAIR 
NOX source's compliance account the CAIRNOX 
allowances allocated for the CAIR NOXunits at the source, as 
submitted by the permitting authority inaccordance with Sec. 96.141(a), 
for the control periods in2009, 2010, 2011, 2012, 2013, and 2014.
    (b) By December 1, 2009, the Administrator will record in the 
CAIRNOX source's compliance account the CAIR 
NOXallowances allocated for the CAIR NOX units at 
the source,as submitted by the permitting authority in accordance 
withSec. 96.141(b), for the control period in 2015.
    (c) By December 1, 2009 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX source'scompliance 
account the CAIR NOX allowances allocated forthe CAIR 
NOX units at the source, as submitted by thepermitting 
authority in accordance with Sec. 96.141(b), forthe control period in 
the sixth year after the year of the applicabledeadline for recordation 
under this paragraph.
    (d) By December 1, 2009 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX source'scompliance 
account the CAIR NOX allowances allocated forthe CAIR 
NOX units at the source, as submitted by thepermitting 
authority or determined by the Administrator in accordancewith Sec. 
96.141(c), for the control period in the year ofthe applicable deadline 
for recordation under this paragraph.
    (e) Serial numbers for allocated CAIR NOXallowances. When recording 
the allocation of CAIRNOX allowances for a CAIR 
NOX unit in acompliance account, the Administrator will 
assign each CAIRNOX allowance a unique identification number 
that willinclude digits identifying the year of the control period for 
whichthe CAIR NOX allowance is allocated.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25384, Apr.28, 2006]

    Editorial Note: At 71 FR 25384, Apr. 28, 2006,Sec. 196.153 was 
amended; however, the amendment could notbe incorporated due to 
inaccurate amendatory instruction.



Sec. 96.154  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOXallowances 
are available to be deducted for compliance with a source'sCAIR 
NOX emissions limitation for a control period in agiven 
calendar year only if the CAIR NOX allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR NOX allowance transfercorrectly submitted 
for recordation under Sec. Sec. 96.160and 96.161 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, 
inaccordance with Sec. 96.161, of CAIR NOXallowance 
transfers submitted for recordation in

[[Page 758]]

a source'scompliance account by the allowance transfer deadline for a 
controlperiod, the Administrator will deduct from the compliance account 
CAIRNOX allowances available under paragraph (a) of 
thissection in order to determine whether the source meets the 
CAIRNOX emissions limitation for the control period, 
asfollows:
    (1) Until the amount of CAIR NOX allowances 
deductedequals the number of tons of total nitrogen oxides 
emissions,determined in accordance with subpart HH of this part, from 
all CAIRNOX units at the source for the control period; or
    (2) If there are insufficient CAIR NOX allowances 
tocomplete the deductions in paragraph (b)(1) of this section, until 
nomore CAIR NOX allowances available under paragraph (a) 
ofthis section remain in the compliance account.
    (c)(1) Identification of CAIR NOX allowancesby serial number. The 
CAIR authorized account representative for asource's compliance account 
may request that specific CAIRNOX allowances, identified by 
serial number, in thecompliance account be deducted for emissions or 
excess emissions for acontrol period in accordance with paragraph (b) or 
(d) of thissection. Such request shall be submitted to the Administrator 
by theallowance transfer deadline for the control period and include, in 
aformat prescribed by the Administrator, the identification of the 
CAIRNOX source and the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRNOX allowances under paragraph (b) or (d) of this 
sectionfrom the source's compliance account, in the absence of 
anidentification or in the case of a partial identification of 
CAIRNOX allowances by serial number under paragraph (c)(1) 
ofthis section, on a first-in, first-out (FIFO) accounting basis in 
thefollowing order:
    (i) Any CAIR NOX allowances that were allocated to 
theunits at the source, in the order of recordation; and then
    (ii) Any CAIR NOX allowances that were allocated toany 
entity and transferred and recorded in the compliance accountpursuant to 
subpart GG of this part, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR NOXsource has excess 
emissions, the Administrator will deduct from thesource's compliance 
account an amount of CAIR NOXallowances, allocated for the 
control period in the immediatelyfollowing calendar year, equal to 3 
times the number of tons of thesource's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) ofthis 
section shall not affect the liability of the owners andoperators of the 
CAIR NOX source or the CAIRNOX units at the source 
for any fine, penalty, orassessment, or their obligation to comply with 
any other remedy, forthe same violations, as ordered under the Clean Air 
Act or applicableState law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart II.
    (f) Administrator's action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the 
CAIR NOX Annual Trading Program andmake appropriate 
adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX allowancesfrom 
or transfer CAIR NOX allowances to a source'scompliance 
account based on the information in the submissions, asadjusted under 
paragraph (f)(1) of this section, and record suchdeductions and 
transfers.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25384, Apr.28, 2006]



Sec. 96.155  Banking.

    (a) CAIR NOX allowances may be banked for future useor 
transfer in a compliance account or a general account in accordancewith 
paragraph (b) of this section.
    (b) Any CAIR NOX allowance that is held in acompliance 
account or a general account will remain in such accountunless and until 
the CAIR NOX allowance is deducted ortransferred

[[Page 759]]

under Sec. 96.154, Sec. 96.156,or subpart GG or II of this part.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25384, Apr.28, 2006]



Sec. 96.156  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR NOXAllowance 
Tracking System account. Within 10 business days of makingsuch 
correction, the Administrator will notify the CAIR authorizedaccount 
representative for the account.



Sec. 96.157  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
96.160 and 96.161 for any CAIRNOX allowances in the account 
to one or more other CAIRNOX Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
NOX allowances, the Administrator may notify the 
CAIRauthorized account representative for the account that the 
accountwill be closed following 20 business days after the notice is 
sent.The account will be closed after the 20-day period unless, before 
theend of the 20-day period, the Administrator receives a 
correctlysubmitted transfer of CAIR NOX allowances into the 
accountunder Sec. Sec. 96.160 and 96.161 or a statement submittedby the 
CAIR authorized account representative demonstrating to thesatisfaction 
of the Administrator good cause as to why the accountshould not be 
closed.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25384, Apr.28, 2006]



                 Subpart GG_CAIR NOX Allowance Transfers

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.160  Submission of CAIR NOX allowance transfers.

    A CAIR authorized account representative seeking recordation of 
aCAIR NOX allowance transfer shall submit the transfer tothe 
Administrator. To be considered correctly submitted, the 
CAIRNOX allowance transfer shall include the 
followingelements, in a format specified by the Administrator:
    (a) The account numbers for both the transferor and 
transfereeaccounts;
    (b) The serial number of each CAIR NOX allowance thatis 
in the transferor account and is to be transferred; and
    (c) The name and signature of the CAIR authorized 
accountrepresentative of the transferor account and the date signed.



Sec. 96.161  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) 
ofthis section) of receiving a CAIR NOX allowance 
transfer,the Administrator will record a CAIR NOX 
allowancetransfer by moving each CAIR NOX allowance from 
thetransferor account to the transferee account as specified by 
therequest, provided that:
    (1) The transfer is correctly submitted underSec. 96.160; and
    (2) The transferor account includes each CAIR 
NOXallowance identified by serial number in the transfer.
    (b) A CAIR NOX allowance transfer that is submittedfor 
recordation after the allowance transfer deadline for a controlperiod 
and that includes any CAIR NOX allowances allocatedfor any 
control period before such allowance transfer deadline willnot be 
recorded until after the Administrator completes the deductionsunder 
Sec. 96.154 for the control period immediately beforesuch allowance 
transfer deadline.
    (c) Where a CAIR NOX allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.



Sec. 96.162  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR NOX allowance transfer underSec. 
96.161, the Administrator will notify the CAIRauthorized account 
representatives of both the transferor andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR NOX allowance transfer that fails

[[Page 760]]

to meet the requirements of Sec. 96.161(a), theAdministrator will 
notify the CAIR authorized account representativesof both accounts 
subject to the transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
NOX allowance transfer for recordation followingnotification 
of non-recordation.



                   Subpart HH_Monitoring and Reporting

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.170  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR NOX unit, 
shallcomply with the monitoring, recordkeeping, and reporting 
requirementsas provided in this subpart and in subpart H of part 75 of 
thischapter. For purposes of complying with such requirements, 
thedefinitions in Sec. 96.102 and in Sec. 72.2 ofthis chapter shall 
apply, and the terms ``affected unit,''``designated representative,'' 
and ``continuousemission monitoring system'' (or ``CEMS'') in part75 of 
this chapter shall be deemed to refer to the terms ``CAIRNOX 
unit,'' ``CAIR designatedrepresentative,'' and ``continuous emission 
monitoringsystem'' (or ``CEMS'') respectively, as defined inSec. 
96.102. The owner or operator of a unit that is not aCAIR NOX 
unit but that is monitored underSec. 75.72(b)(2)(ii) of this chapter 
shall comply with thesame monitoring, recordkeeping, and reporting 
requirements as a CAIRNOX unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR NOX 
unitshall:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass emissions and individual unit 
heatinput (including all systems required to monitor 
NOXemission rate, NOX concentration, stack gas 
moisturecontent, stack gas flow rate, CO2 or 
O2concentration, and fuel flow rate, as applicable, in 
accordance withSec. Sec. 75.71 and 75.72 of this chapter);
    (2) Successfully complete all certification tests required 
underSec. 96.171 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet the monitoringsystem 
certification and other requirements of paragraphs (a)(1) and(2) of this 
section on or before the following dates. The owner oroperator shall 
record, report, and quality-assure the data from themonitoring systems 
under paragraph (a)(1) of this section on and afterthe following dates.
    (1) For the owner or operator of a CAIR NOX unit 
thatcommences commercial operation before July 1, 2007, by January 
1,2008.
    (2) For the owner or operator of a CAIR NOX unit 
thatcommences commercial operation on or after July 1, 2007, by the 
laterof the following dates:
    (i) January 1, 2008; or
    (ii) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation.
    (3) For the owner or operator of a CAIR NOX unit forwhich 
construction of a new stack or flue or installation of add-
onNOX emission controls is completed after the 
applicabledeadline under paragraph (b)(1), (2), (4), or (5) of this 
section, by90 unit operating days or 180 calendar days, whichever occurs 
first,after the date on which emissions first exit to the atmosphere 
throughthe new stack or flue or add-on NOX emissions 
controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a unit for which a CAIR opt-
inpermit application is submitted and not withdrawn and a CAIR opt-
inpermit is not yet issued or denied under subpart II of this part, 
bythe date specified in Sec. 96.184(b).

[[Page 761]]

    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) ofthis 
section, for the owner or operator of a CAIR NOX opt-in unit 
under subpart II of this part, by the date on which the 
CAIRNOX opt-in unit enters the CAIR NOX 
AnnualTrading Program as provided in Sec. 96.184(g).
    (c) Reporting data. The owner or operator of a CAIRNOX 
unit that does not meet the applicable compliance dateset forth in 
paragraph (b) of this section for any monitoring systemunder paragraph 
(a)(1) of this section shall, for each such monitoringsystem, determine, 
record, and report maximum potential (or, asappropriate, minimum 
potential) values for NOXconcentration, NOX 
emission rate, stack gas flow rate,stack gas moisture content, fuel flow 
rate, and any other parametersrequired to determine NOX mass 
emissions and heat input inaccordance with Sec. 75.31(b)(2) or (c)(3) 
of this chapter,section 2.4 of appendix D to part 75 of this chapter, or 
section 2.5of appendix E to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRNOX 
unit shall use any alternative monitoring system,alternative reference 
method, or any other alternative to anyrequirement of this subpart 
without having obtained prior writtenapproval in accordance with Sec. 
96.175.
    (2) No owner or operator of a CAIR NOX unit shalloperate 
the unit so as to discharge, or allow to be discharged,NOX 
emissions to the atmosphere without accounting for allsuch emissions in 
accordance with the applicable provisions of thissubpart and part 75 of 
this chapter.
    (3) No owner or operator of a CAIR NOX unit shalldisrupt 
the continuous emission monitoring system, any portionthereof, or any 
other approved emission monitoring method, and therebyavoid monitoring 
and recording NOX mass emissionsdischarged into the 
atmosphere or heat input, except for periods ofrecertification or 
periods when calibration, quality assurancetesting, or maintenance is 
performed in accordance with the applicableprovisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX unit shallretire 
or permanently discontinue use of the continuous emissionmonitoring 
system, any component thereof, or any other approvedmonitoring system 
under this subpart, except under any one of thefollowing circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 96.105 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
permitting authority for use at that unit that providesemission data for 
the same pollutant or parameter as the retired ordiscontinued monitoring 
system; or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
96.171(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRNOX unit is subject to the applicable provisions of 
part75 of this chapter concerning units in long-term cold storage.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25384, Apr.28, 2006]



Sec. 96.171  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR NOX unit shall 
beexempt from the initial certification requirements of this section 
fora monitoring system under Sec. 96.170(a)(1) if the 
followingconditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix B,appendix D, and appendix E 
to part 75 of this chapter are fully metfor the certified monitoring 
system described in paragraph (a)(1) ofthis section.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 96.170(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.

[[Page 762]]

    (c) If the Administrator has previously approved a petitionunder 
Sec. 75.17(a) or (b) of this chapter for apportioningthe NOX 
emission rate measured in a common stack or apetition under Sec. 75.66 
of this chapter for an alternativeto a requirement in Sec. 75.12 or 
Sec. 75.17 ofthis chapter, the CAIR designated representative shall 
resubmit thepetition to the Administrator under Sec. 96.175(a) 
todetermine whether the approval applies under the CAIR 
NOXAnnual Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR NOX unit shall comply with thefollowing 
initial certification and recertification procedures for acontinuous 
monitoring system (i.e., a continuous emissionmonitoring system and an 
excepted monitoring system under appendices Dand E to part 75 of this 
chapter) under Sec. 96.170(a)(1).The owner or operator of a unit that 
qualifies to use the low massemissions excepted monitoring methodology 
under Sec. 75.19of this chapter or that qualifies to use an alternative 
monitoringsystem under subpart E of part 75 of this chapter shall comply 
withthe procedures in paragraph (e) or (f) of this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
96.170(a)(1)(including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 96.170(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial 
certification inaccordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in any certifiedcontinuous 
emission monitoring system under Sec. 96.170(a)(1) that may 
significantly affect the ability of the system toaccurately measure or 
record NOX mass emissions or heatinput rate or to meet the 
quality-assurance and quality-controlrequirements of Sec. 75.21 of this 
chapter or appendix B topart 75 of this chapter, the owner or operator 
shall recertify themonitoring system in accordance with Sec. 75.20(b) 
of thischapter. Furthermore, whenever the owner or operator makes 
areplacement, modification, or change to the flue gas handling systemor 
the unit's operation that may significantly change the stack flowor 
concentration profile, the owner or operator shall recertify 
eachcontinuous emission monitoring system whose accuracy is 
potentiallyaffected by the change, in accordance with Sec. 75.20(b) 
ofthis chapter. Examples of changes to a continuous emission 
monitoringsystem that require recertification include replacement of 
theanalyzer, complete replacement of an existing continuous 
emissionmonitoring system, or change in location or orientation of 
thesampling probe or site. Any fuel flowmeter system, and any 
exceptedNOX monitoring system under appendix E to part 75 of 
thischapter, under Sec. 96.170(a)(1) are subject to therecertification 
requirements in Sec. 75.20(g)(6) of thischapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and recertification of acontinuous monitoring system under 
Sec. 96.170(a)(1). Forrecertifications, replace the words 
``certification'' and``initial certification'' with the 
word``recertification'', replace the word``certified'' with the word 
``recertified,''and follow the procedures in Sec. Sec. 75.20(b)(5) and 
(g)(7) of this chapter in lieu of the procedures in paragraph 
(d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the permitting authority, theappropriate EPA Regional 
Office, and the Administrator written noticeof the dates of 
certification testing, in accordance withSec. 96.173.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the permitting authority acertification application for 
each monitoring system. A completecertification application shall 
include the information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined

[[Page 763]]

inaccordance with Sec. 75.20(a)(3) of this chapter. Aprovisionally 
certified monitoring system may be used under the CAIRNOX 
Annual Trading Program for a period not to exceed 120days after receipt 
by the permitting authority of the completecertification application for 
the monitoring system under paragraph(d)(3)(ii) of this section. Data 
measured and recorded by theprovisionally certified monitoring system, 
in accordance with therequirements of part 75 of this chapter, will be 
considered validquality-assured data (retroactive to the date and time 
of provisionalcertification), provided that the permitting authority 
does notinvalidate the provisional certification by issuing a notice 
ofdisapproval within 120 days of the date of receipt of the 
completecertification application by the permitting authority.
    (iv) Certification application approval process. Thepermitting 
authority will issue a written notice of approval ordisapproval of the 
certification application to the owner or operatorwithin 120 days of 
receipt of the complete certification applicationunder paragraph 
(d)(3)(ii) of this section. In the event thepermitting authority does 
not issue such a notice within such 120-dayperiod, each monitoring 
system that meets the applicable performancerequirements of part 75 of 
this chapter and is included in thecertification application will be 
deemed certified for use under theCAIR NOX Annual Trading 
Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then thepermitting authority 
will issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the permitting authority will issuea written 
notice of incompleteness that sets a reasonable date bywhich the CAIR 
designated representative must submit the additionalinformation required 
to complete the certification application. If theCAIR designated 
representative does not comply with the notice ofincompleteness by the 
specified date, then the permitting authoritymay issue a notice of 
disapproval under paragraph (d)(3)(iv)(C) ofthis section. The 120-day 
review period shall not begin before receiptof a complete certification 
application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the permittingauthority will issue a written notice 
of disapproval of thecertification application. Upon issuance of such 
notice ofdisapproval, the provisional certification is invalidated by 
thepermitting authority and the data measured and recorded by 
eachuncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of 
provisionalcertification (as defined under Sec. 75.20(a)(3) of 
thischapter). The owner or operator shall follow the procedures for 
lossof certification in paragraph (d)(3)(v) of this section for 
eachmonitoring system that is disapproved for initial certification.
    (D) Audit decertification. The permitting authority or, fora CAIR 
NOX opt-in unit or a unit for which a CAIR opt-inpermit 
application is submitted and not withdrawn and a CAIR opt-inpermit is 
not yet issued or denied under subpart II of this part, theAdministrator 
may issue a notice of disapproval of the certificationstatus of a 
monitor in accordance with Sec. 96.172(b).
    (v) Procedures for loss of certification. If the permittingauthority 
or the Administrator issues a notice of disapproval of acertification 
application under paragraph (d)(3)(iv)(C) of thissection or a notice of 
disapproval of certification status underparagraph (d)(3)(iv)(D) of this 
section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified

[[Page 764]]

under Sec. 75.20(a)(5)(i) or (g)(7) of this chapter:
    (1) For a disapproved NOX emission rate(i.e., 
NOX-diluent) system, the maximum potentialNOX 
emission rate, as defined in Sec. 72.2 ofthis chapter.
    (2) For a disapproved NOX pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of NOX and the maximumpotential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (4) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (5) For a disapproved excepted NOX monitoringsystem under 
appendix E to part 75 of this chapter, the fuel-specificmaximum 
potential NOX emission rate, as defined inSec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the permitting authority's or the Administrator's 
noticeof disapproval, no later than 30 unit operating days after the 
date ofissuance of the notice of disapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) exceptedmethodology under Sec. 75.19 of this 
chapter shall meet theapplicable certification and recertification 
requirements inSec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
theowner or operator of such a unit elects to certify a fuel 
flowmetersystem for heat input determination, the owner or operator 
shall alsomeet the certification and recertification requirements 
inSec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator and, if 
applicable,the permitting authority under subpart E of part 75 of this 
chaptershall comply with the applicable notification and 
applicationprocedures of Sec. 75.20(f) of this chapter.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.172  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D or 
subpart Hof, or appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 96.171 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the permitting authority or, for a CAIR NOX opt-
in unit ora unit for which a CAIR opt-in permit application is submitted 
and notwithdrawn and a CAIR opt-in permit is not yet issued or denied 
undersubpart II of this part, the Administrator will issue a notice 
ofdisapproval of the certification status of such monitoring system. 
Forthe purposes of this paragraph, an audit shall be either a field 
auditor an audit of any information submitted to the permitting 
authorityor the Administrator. By issuing the notice of disapproval, 
thepermitting authority or the Administrator revokes prospectively 
thecertification status of the

[[Page 765]]

monitoring system. The data measuredand recorded by the monitoring 
system shall not be considered validquality-assured data from the date 
of issuance of the notification ofthe revoked certification status until 
the date and time that theowner or operator completes subsequently 
approved initialcertification or recertification tests for the 
monitoring system. Theowner or operator shall follow the applicable 
initial certification orrecertification procedures in Sec. 96.171 for 
eachdisapproved monitoring system.



Sec. 96.173  Notifications.

    The CAIR designated representative for a CAIR NOX 
unitshall submit written notice to the permitting authority and 
theAdministrator in accordance with Sec. 75.61 of this chapter.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.174  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements underSec. 75.73 
of this chapter, and the requirements ofSec. 96.110(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIRNOX 
unit shall comply with requirements ofSec. 75.73(c) and (e) of this 
chapter and, for a unit forwhich a CAIR opt-in permit application is 
submitted and not withdrawnand a CAIR opt-in permit is not yet issued or 
denied under subpart IIof this part, Sec. Sec. 96.183 and 96.184(a).
    (c) Certification Applications. The CAIR designatedrepresentative 
shall submit an application to the permitting authoritywithin 45 days 
after completing all initial certification orrecertification tests 
required under Sec. 96.171, includingthe information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report 
theNOX mass emissions data and heat input data for the 
CAIRNOX unit, in an electronic quarterly report in a 
formatprescribed by the Administrator, for each calendar quarter 
beginningwith:
    (i) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering January 1, 2008 through March 
31,2008;
    (ii) For a unit that commences commercial operation on or afterJuly 
1, 2007, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 96.170(b), unless thatquarter is the third or 
fourth quarter of 2007, in which casereporting shall commence in the 
quarter covering January 1, 2008through March 31, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart II of this part, the calendar quartercorresponding to the date 
specified in Sec. 96.184(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a CAIR NOX opt-in unit under subpart II ofthis part, the 
calendar quarter corresponding to the date on which theCAIR 
NOX opt-in unit enters the CAIR NOXAnnual Trading 
Program as provided in Sec. 96.184(g).
    (2) The CAIR designated representative shall submit each 
quarterlyreport to the Administrator within 30 days following the end of 
thecalendar quarter covered by the report. Quarterly reports shall 
besubmitted in the manner specified in Sec. 75.73(f) of thischapter.
    (3) For CAIR NOX units that are also subject to anAcid 
Rain emissions limitation or the CAIR NOX OzoneSeason Trading 
Program, CAIR SO2 Trading Program, or HgBudget Trading 
Program, quarterly reports shall include the applicabledata and 
information required by subparts F through I of part 75 ofthis chapter 
as applicable, in addition to the NOX massemission data, heat 
input data, and other information required by thissubpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by the Administrator) in supportof each quarterly report 
based on reasonable

[[Page 766]]

inquiry of thosepersons with primary responsibility for ensuring that 
all of theunit's emissions are correctly and fully monitored. The 
certificationshall state that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications; and
    (2) For a unit with add-on NOX emission controls andfor 
all hours where NOX data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
NOX emissions.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.175  Petitions.

    (a) Except as provided in paragraph (b)(2) of this section, theCAIR 
designated representative of a CAIR NOX unit that issubject 
to an Acid Rain emissions limitation may submit a petitionunder Sec. 
75.66 of this chapter to the Administratorrequesting approval to apply 
an alternative to any requirement of thissubpart. Application of an 
alternative to any requirement of thissubpart is in accordance with this 
subpart only to the extent that thepetition is approved in writing by 
the Administrator, in consultationwith the permitting authority.
    (b)(1) The CAIR designated representative of a CAIRNOX 
unit that is not subject to an Acid Rain emissionslimitation may submit 
a petition under Sec. 75.66 of thischapter to the permitting authority 
and the Administrator requestingapproval to apply an alternative to any 
requirement of this subpart.Application of an alternative to any 
requirement of this subpart is inaccordance with this subpart only to 
the extent that the petition isapproved in writing by both the 
permitting authority and theAdministrator.
    (2) The CAIR designated representative of a CAIR NOXunit 
that is subject to an Acid Rain emissions limitation may submit 
apetition under Sec. 75.66 of this chapter to the permittingauthority 
and the Administrator requesting approval to apply analternative to a 
requirement concerning any additional continuousemission monitoring 
system required under Sec. 75.72 of thischapter. Application of an 
alternative to any such requirement is inaccordance with this subpart 
only to the extent that the petition isapproved in writing by both the 
permitting authority and theAdministrator.



                    Subpart II_CAIR NOX Opt-in Units

    Source: 70 FR 25339, May 12, 2005, unless otherwisenoted.



Sec. 96.180  Applicability.

    A CAIR NOX opt-in unit must be a unit that:
    (a) Is located in the State;
    (b) Is not a CAIR NOX unit under Sec. 96.104and is not 
covered by a retired unit exemption underSec. 96.105 that is in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart HH 
ofthis part.



Sec. 96.181  General.

    (a) Except as otherwise provided in Sec. Sec. 96.101through 96.104, 
Sec. Sec. 96.106 through 96.108, andsubparts BB and CC and subparts FF 
through HH of this part, a CAIRNOX opt-in unit shall be 
treated as a CAIR NOXunit for purposes of applying such 
sections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HH of this part to a unit for which a CAIRopt-in 
permit application is submitted and not withdrawn and a CAIRopt-in 
permit is not yet issued or denied under this subpart, suchunit shall be 
treated as a CAIR NOX unit before issuanceof a CAIR opt-in 
permit for such unit.

[[Page 767]]



Sec. 96.182  CAIR designated representative.

    Any CAIR NOX opt-in unit, and any unit for which aCAIR 
opt-in permit application is submitted and not withdrawn and aCAIR opt-
in permit is not yet issued or denied under this subpart,located at the 
same source as one or more CAIR NOX unitsshall have the same 
CAIR designated representative and alternate CAIRdesignated 
representative as such CAIR NOX units.



Sec. 96.183  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements for aCAIR 
NOX opt-in unit in Sec. 96.180 may applyfor an initial CAIR 
opt-in permit at any time, except as providedunder Sec. 96.186(f) and 
(g), and, in order to apply, mustsubmit the following:
    (1) A complete CAIR permit application underSec. 96.122;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR NOX unit under Sec. 96.104and is not 
covered by a retired unit exemption underSec. 96.105 that is in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Vents all of its emissions to a stack, and
    (iv) Has documented heat input for more than 876 hours during the6 
months immediately preceding submission of the CAIR permitapplication 
under Sec. 96.122;
    (3) A monitoring plan in accordance with subpart HH of this part;
    (4) A complete certificate of representation underSec. 96.113 
consistent with Sec. 96.182, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR NOX allowances underSec. 96.188(b) or Sec. 
96.188(c) (subject to theconditions in Sec. Sec. 96.184(h) and 
96.186(g)). Ifallocation under Sec. 96.188(c) is requested, this 
statementshall include a statement that the owners and operators of the 
unitintend to repower the unit before January 1, 2015 and that they 
willprovide, upon request, documentation demonstrating such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
NOX opt-in unit shall submit a complete CAIRpermit 
application under Sec. 96.122 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority'sregulations for title V 
operating permits, or the permittingauthority's regulations for other 
federally enforceable permits ifapplicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR NOX opt-in unit 
fromthe CAIR NOX Annual Trading Program in accordance 
withSec. 96.186 or the unit becomes a CAIR NOX unitunder 
Sec. 96.104, the CAIR NOX opt-in unitshall remain subject to 
the requirements for a CAIR NOXopt-in unit, even if the CAIR 
designated representative for the CAIRNOX opt-in unit fails 
to submit a CAIR permit applicationthat is required for renewal of the 
CAIR opt-in permit under paragraph(b)(1) of this section.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.184  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 96.183 is submitted in accordance with thefollowing:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit under Sec. 96.183. Amonitoring plan is sufficient, for 
purposes of interim review, if theplan appears to contain information 
demonstrating that theNOX emissions rate and heat input of 
the unit and allother applicable parameters are monitored and reported 
in accordancewith subpart HH of this part. A determination of 
sufficiency shall notbe construed as acceptance or approval of the 
monitoring plan.

[[Page 768]]

    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the NOX emissions rate and theheat input of the unit 
and all other applicable parameters, inaccordance with subpart HH of 
this part, starting on the date ofcertification of the appropriate 
monitoring systems under subpart HHof this part and continuing until a 
CAIR opt-in permit is denied underSec. 96.184(f) or, if a CAIR opt-in 
permit is issued, thedate and time when the unit is withdrawn from the 
CAIR NOXAnnual Trading Program in accordance with Sec. 
96.186.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR NOXAnnual Trading 
Program under Sec. 96.184(g), during whichperiod monitoring system 
availability must not be less than 90 percentunder subpart HH of this 
part and the unit must be in full compliancewith any applicable State or 
Federal emissions or emissions-relatedrequirements.
    (2) To the extent the NOX emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HH of this part and the unit is 
infull compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR NOXAnnual 
Trading Program under Sec. 96.184(g), suchinformation shall be used as 
provided in paragraphs (c) and (d) ofthis section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit'sbaseline 
NOX emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's NOXemissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on NOX emission controls during anysuch control 
periods, the average of the amounts of the unit'sNOX 
emissions rate (in lb/mmBtu) for the control periodsunder paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
NOX emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sNOX emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline NOX emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows that 
the unit meets the requirements for a CAIRNOX opt-in unit in 
Sec. 96.180 and meets theelements certified in Sec. 96.183(a)(2), the 
permittingauthority will issue a CAIR opt-in permit. The permitting 
authoritywill provide a copy of the CAIR opt-in permit to the 
Administrator,who will then establish a compliance account for the 
source thatincludes the CAIR NOX opt-in unit

[[Page 769]]

unless the sourcealready has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in permit for the unit, thepermitting authority 
determines that the CAIR designatedrepresentative fails to show that the 
unit meets the requirements fora CAIR NOX opt-in unit in 
Sec. 96.180 or meetsthe elements certified in Sec. 96.183(a)(2), the 
permittingauthority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR NOX AnnualTrading Program. A 
unit for which an initial CAIR opt-in permit isissued by the permitting 
authority shall become a CAIR NOXopt-in unit, and a CAIR 
NOX unit, as of the later ofJanuary 1, 2009 or January 1 of 
the first control period during whichsuch CAIR opt-in permit is issued.
    (h) Repowered CAIR NOX opt-in unit. (1) IfCAIR designated 
representative requests, and the permitting authorityissues a CAIR opt-
in permit providing for, allocation to a CAIRNOX opt-in unit 
of CAIR NOX allowances underSec. 96.188(c) and such unit is 
repowered after its date ofentry into the CAIR NOX Annual 
Trading Program underparagraph (g) of this section, the repowered unit 
shall be treated asa CAIR NOX opt-in unit replacing the 
original CAIRNOX opt-in unit, as of the date of start-up of 
therepowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline NOX emission rate as the originalCAIR NOX 
opt-in unit, and the original CAIRNOX opt-in unit shall no 
longer be treated as a CAIRNOX opt-in unit or a CAIR 
NOX unit.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.185  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 96.122;
    (2) The certification in Sec. 96.183(a)(2);
    (3) The unit's baseline heat input under Sec. 96.184(c);
    (4) The unit's baseline NOX emission rate underSec. 
96.184(d);
    (5) A statement whether the unit is to be allocated 
CAIRNOX allowances Sec. 96.188(b) orSec. 96.188(c) (subject 
to the conditions inSec. Sec. 96.184(h) and 96.186(g));
    (6) A statement that the unit may withdraw from the 
CAIRNOX Annual Trading Program only in accordance withSec. 
96.186; and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
96.187.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 96.102 and, 
uponrecordation by the Administrator under subpart FF or GG of this 
partor this subpart, every allocation, transfer, or deduction of 
CAIRNOX allowances to or from the compliance account of 
thesource that includes a CAIR NOX opt-in unit covered by 
theCAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR NOX opt-in unit is located and in atitle V operating 
permit or other federally enforceable permit for thesource.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.186  Withdrawal from CAIR NOX Annual Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRNOX opt-in unit may withdraw from the CAIR 
NOXAnnual Trading Program, but only if the permitting 
authority issues anotification to the CAIR designated representative of 
the CAIRNOX opt-in unit of the acceptance of the withdrawal 
of theCAIR NOX opt-in unit in accordance with paragraph (d) 
ofthis section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
CAIRNOX opt-in unit from the CAIR NOX 
AnnualTrading Program, the CAIR designated representative of the 
CAIRNOX opt-in

[[Page 770]]

unit shall submit to the permittingauthority a request to withdraw 
effective as of midnight of December31 of a specified calendar year, 
which date must be at least 4 yearsafter December 31 of the year of 
entry into the CAIR NOXAnnual Trading Program under Sec. 
96.184(g). The requestmust be submitted no later than 90 days before the 
requested effectivedate of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOXopt-in 
unit covered by a request under paragraph (a) of this sectionmay 
withdraw from the CAIR NOX Annual Trading Program andthe CAIR 
opt-in permit may be terminated under paragraph (e) of thissection, the 
following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRNOX opt-
in unit must meet the requirement to hold CAIRNOX allowances 
under Sec. 96.106(c) and cannothave any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR NOX 
opt-inunit CAIR NOX allowances equal in amount to and 
allocatedfor the same or a prior control period as any CAIR 
NOXallowances allocated to the CAIR NOX opt-in 
unit underSec. 96.188 for any control period for which the withdrawalis 
to be effective. If there are no remaining CAIR NOXunits at 
the source, the Administrator will close the complianceaccount, and the 
owners and operators of the CAIR NOX opt-in unit may submit a 
CAIR NOX allowance transfer for anyremaining CAIR 
NOX allowances to another CAIRNOX Allowance 
Tracking System in accordance with subpartGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR NOX allowancesrequired), the 
permitting authority will issue a notification to theCAIR designated 
representative of the CAIR NOX opt-in unitof the acceptance 
of the withdrawal of the CAIR NOX opt-inunit as of midnight 
on December 31 of the calendar year for which thewithdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRNOX opt-in unit that the CAIR NOX opt-inunit's 
request to withdraw is denied. Such CAIR NOX opt-inunit shall 
continue to be a CAIR NOX opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR NOX opt-inunit to terminate the 
CAIR opt-in permit for such unit as of theeffective date specified under 
paragraph (c)(1) of this section. Theunit shall continue to be a CAIR 
NOX opt-in unit until theeffective date of the termination 
and shall comply with allrequirements under the CAIR NOX 
Annual Trading Programconcerning any control periods for which the unit 
is a CAIRNOX opt-in unit, even if such requirements arise or 
mustbe complied with after the withdrawal takes effect.
    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRNOX opt-in unit's 
request to withdraw, the CAIR designatedrepresentative may submit 
another request to withdraw in accordancewith paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR NOX AnnualTrading 
Program. Once a CAIR NOX opt-in unit withdrawsfrom the CAIR 
NOX Annual Trading Program and its CAIR opt-in permit is 
terminated under this section, the CAIR designatedrepresentative may not 
submit another application for a CAIR opt-inpermit under Sec. 96.183 
for such CAIR NOX opt-in unit before the date that is 4 years 
after the date on which thewithdrawal became effective. Such new 
application for a CAIR opt-inpermit will be treated as an initial 
application for a CAIR opt-inpermit under Sec. 96.184.
    (g) Inability to withdraw. Notwithstanding paragraphs (a)through (f) 
of this section, a CAIR NOX opt-in unit shallnot be eligible 
to withdraw from

[[Page 771]]

the CAIR NOX AnnualTrading Program if the CAIR designated 
representative of the CAIRNOX opt-in unit requests, and the 
permitting authorityissues a CAIR NOX opt-in permit providing 
for, allocationto the CAIR NOX opt-in unit of CAIR 
NOXallowances under Sec. 96.188(c).

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]



Sec. 96.187  Change in regulatory status.

    (a) Notification. If a CAIR NOX opt-in unitbecomes a CAIR 
NOX unit under Sec. 96.104, thenthe CAIR designated 
representative shall notify in writing thepermitting authority and the 
Administrator of such change in the CAIRNOX opt-in unit's 
regulatory status, within 30 days ofsuch change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
NOX opt-in unit becomes a CAIR NOXunit under Sec. 
96.104, the permitting authority will revisethe CAIR NOX opt-
in unit's CAIR opt-in permit to meet therequirements of a CAIR permit 
under Sec. 96.123, and removethe CAIR opt-in permit provisions, as of 
the date on which the CAIRNOX opt-in unit becomes a CAIR 
NOX unit underSec. 96.104.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes the CAIR NOX opt-in unit thatbecomes 
a CAIR NOX unit under Sec. 96.104, CAIRNOX 
allowances equal in amount to and allocated for thesame or a prior 
control period as:
    (A) Any CAIR NOX allowances allocated to the 
CAIRNOX opt-in unit under Sec. 96.188 for anycontrol period 
after the date on which the CAIR NOX opt-inunit becomes a 
CAIR NOX unit under Sec. 96.104;and
    (B) If the date on which the CAIR NOX opt-in unitbecomes 
a CAIR NOX unit under Sec. 96.104 is notDecember 31, the 
CAIR NOX allowances allocated to the CAIRNOX opt-
in unit under Sec. 96.188 for thecontrol period that includes the date 
on which the CAIRNOX opt-in unit becomes a CAIR 
NOX unit underSec. 96.104, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRNOX opt-in unit becomes a CAIR NOX unit 
underSec. 96.104 divided by the total number of days in thecontrol 
period and rounded to the nearest whole allowance asappropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRNOX 
opt-in unit that becomes a CAIR NOX unitunder Sec. 96.104 
contains the CAIR NOXallowances necessary for completion of 
the deduction under paragraph(b)(2)(i) of this section.
    (3)(i) For every control period after the date on which the 
CAIRNOX opt-in unit becomes a CAIR NOX unit 
underSec. 96.104, the CAIR NOX opt-in unit will beallocated 
CAIR NOX allowances under Sec. 96.142.
    (ii) If the date on which the CAIR NOX opt-in unitbecomes 
a CAIR NOX unit under Sec. 96.104 is notDecember 31, the 
following amount of CAIR NOX allowanceswill be allocated to 
the CAIR NOX opt-in unit (as a CAIRNOX unit) under 
Sec. 96.142 for the controlperiod that includes the date on which the 
CAIR NOX opt-inunit becomes a CAIR NOX unit under 
Sec. 96.104:
    (A) The amount of CAIR NOX allowances otherwiseallocated 
to the CAIR NOX opt-in unit (as a CAIRNOX unit) 
under Sec. 96.142 for the controlperiod multiplied by;
    (B) The ratio of the number of days, in the control period,starting 
with the date on which the CAIR NOX opt-in unitbecomes a CAIR 
NOX unit under Sec. 96.104,divided by the total number of 
days in the control period; and
    (C) Rounded to the nearest whole allowance as appropriate.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.188  CAIR NOX allowance allocations to CAIR NOXopt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 96.184(e), the permitting authority willallocate CAIR 
NOX allowances to the CAIR NOXopt-in unit, and 
submit to the Administrator the allocation for thecontrol period in 
which a CAIR NOX opt-in unit enters theCAIR NOX 
Annual Trading Program underSec. 96.184(g), in accordance with 
paragraph (b) or (c) ofthis section.
    (2) By no later than October 31 of the control period after 
thecontrol period in which a CAIR NOX opt-in unit enters

[[Page 772]]

the CAIR NOX Annual Trading Program underSec. 96.184(g) and 
October 31 of each year thereafter, thepermitting authority will 
allocate CAIR NOX allowances tothe CAIR NOX opt-in 
unit, and submit to the Administratorthe allocation for the control 
period that includes such submissiondeadline and in which the unit is a 
CAIR NOX opt-in unit,in accordance with paragraph (b) or (c) 
of this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR NOX opt-in unit is to be allocated CAIRNOX 
allowances, the permitting authority will allocate inaccordance with the 
following procedures:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRNOX allowance allocation will be the lesser of:
    (i) The CAIR NOX opt-in unit's baseline heat 
inputdetermined under Sec. 96.184(c); or
    (ii) The CAIR NOX opt-in unit's heat input, asdetermined 
in accordance with subpart HH of this part, for theimmediately prior 
control period, except when the allocation is beingcalculated for the 
control period in which the CAIR NOXopt-in unit enters the 
CAIR NOX Annual Trading Programunder Sec. 96.184(g).
    (2) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX allowance allocations will be 
thelesser of:
    (i) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 96.184(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX opt-in unit at 
anytime during the control period for which CAIR 
NOXallowances are to be allocated.
    (3) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (b)(1) of this 
section,multiplied by the NOX emission rate under paragraph 
(b)(2)of this section, divided by 2,000 lb/ton, and rounded to the 
nearestwhole allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit (based on a demonstration of the 
intent torepower stated under Sec. 96.183(a)(5)) providing 
for,allocation to a CAIR NOX opt-in unit of 
CAIRNOX allowances under this paragraph (subject to 
theconditions in Sec. Sec. 96.184(h) and 96.186(g)), thepermitting 
authority will allocate to the CAIR NOX opt-inunit as 
follows:
    (1) For each control period in 2009 through 2014 for which theCAIR 
NOX opt-in unit is to be allocated CAIRNOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRNOX allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX allowance allocations will be 
thelesser of:
    (A) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 96.184(d); or
    (B) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX opt-in unit at 
anytime during the control period in which the CAIR NOX opt-
in unit enters the CAIR NOX Annual Trading Program underSec. 
96.184(g).
    (iii) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (c)(1)(i) of this 
section,multiplied by the NOX emission rate under paragraph 
(c)(1)(ii) of this section, divided by 2,000 lb/ton, and rounded to 
thenearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which theCAIR 
NOX opt-in unit is to be allocated CAIRNOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRNOX allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating the CAIR NOX allowance allocation will be 
thelesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 96.184(d); or

[[Page 773]]

    (C) The most stringent State or Federal NOXemissions 
limitation applicable to the CAIR NOX opt-inunit at any time 
during the control period for which CAIRNOX allowances are to 
be allocated.
    (iii) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (c)(2)(i) of this 
section,multiplied by the NOX emission rate under paragraph 
(c)(2)(ii) of this section, divided by 2,000 lb/ton, and rounded to 
thenearest whole allowance as appropriate.
    (d) Recordation. (1) The Administrator will record, in thecompliance 
account of the source that includes the CAIRNOX opt-in unit, 
the CAIR NOX allowancesallocated by the permitting authority 
to the CAIR NOX opt-in unit under paragraph (a)(1) of this 
section.
    (2) By December 1 of the control period in which a 
CAIRNOX opt-in unit enters the CAIR NOX 
AnnualTrading Program under Sec. 96.184(g) and December 1 of eachyear 
thereafter, the Administrator will record, in the complianceaccount of 
the source that includes the CAIR NOX opt-inunit, the CAIR 
NOX allowances allocated by the permittingauthority to the 
CAIR NOX opt-in unit under paragraph (a)(2) of this section.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006]

Subparts JJ--ZZ [Reserved]



         Subpart AAA_CAIR SO2 Trading ProgramGeneral Provisions

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.201  Purpose.

    This subpart and subparts BBB through III establish the model 
rulecomprising general provisions and the designated 
representative,permitting, allowance, monitoring, and opt-in provisions 
for the StateClean Air Interstate Rule (CAIR) SO2 Trading 
Program,under section 110 of the Clean Air Act and Sec. 51.124 ofthis 
chapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide. The owner or operator of a unit or 
asource shall comply with the requirements of this subpart and 
subpartsBBB through III as a matter of federal law only if the State 
withjurisdiction over the unit and the source incorporates by 
referencesuch subparts or otherwise adopts the requirements of such 
subparts inaccordance with Sec. 51.124(o)(1) or (2) of this chapter,the 
State submits to the Administrator one or more revisions of theState 
implementation plan that include such adoption, and theAdministrator 
approves such revisions. If the State adopts therequirements of such 
subparts in accordance withSec. 51.124(o)(1) or (2) of this chapter, 
then the Stateauthorizes the Administrator to assist the State in 
implementing theCAIR SO2 Trading Program by carrying out the 
functions setforth for the Administrator in such subparts.



Sec. 96.202  Definitions.

    The terms used in this subpart and subparts BBB through III 
shallhave the meanings set forth in this section as follows:
    Account number means the identification number given by 
theAdministrator to each CAIR SO2 Allowance Tracking 
Systemaccount.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides air pollution control and emission reduction programestablished 
by the Administrator under title IV of the CAA and parts72 through 78 of 
this chapter.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRSO2 
allowances issued under the Acid Rain Program, thedetermination by the 
Administrator of the amount of such CAIRSO2 allowances to be 
initially credited to a CAIRSO2 unit or other entity and, 
with regard to CAIRSO2 allowances issued under provisions of 
a Stateimplementation plan that are approved under Sec. 51.124(o)(1) or 
(2) or (r) of this chapter

[[Page 774]]

or Sec. 97.288 ofthis chapter, the determination by a permitting 
authority of theamount of such CAIR SO2 allowances to be 
initiallycredited to a CAIR SO2 unit or other entity.
    Allowance transfer deadline means, for a control period,midnight of 
March 1 (if it is a business day), or midnight of thefirst business day 
thereafter (if March 1 is not a business day),immediately following the 
control period and is the deadline by whicha CAIR SO2 
allowance transfer must be submitted forrecordation in a CAIR 
SO2 source's compliance account inorder to be used to meet 
the source's CAIR SO2 emissionslimitation for such control 
period in accordance withSec. 96.254.
    Alternate CAIR designated representative means, for a 
CAIRSO2 source and each CAIR SO2 unit at 
thesource, the natural person who is authorized by the owners 
andoperators of the source and all such units at the source, 
inaccordance with subparts BBB and III of this part, to act on behalf 
ofthe CAIR designated representative in matters pertaining to the 
CAIRSO2 Trading Program. If the CAIR SO2 source 
isalso a CAIR NOX source, then this natural person shall 
bethe same person as the alternate CAIR designated representative 
underthe CAIR NOX Annual Trading Program. If the 
CAIRSO2 source is also a CAIR NOX Ozone 
Seasonsource, then this natural person shall be the same person as 
thealternate CAIR designated representative under the CAIRNOX 
Ozone Season Trading Program. If the CAIRSO2 source is also 
subject to the Acid Rain Program, thenthis natural person shall be the 
same person as the alternatedesignated representative under the Acid 
Rain Program. If the CAIRSO2 source is also subject to the Hg 
Budget TradingProgram, then this natural person shall be the same person 
as thealternate Hg designated representative under the Hg Budget 
TradingProgram.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions monitoring system approved for use under subpart HHHof this 
part, designed to interpret and convert individual outputsignals from 
pollutant concentration monitors, flow monitors, diluentgas monitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HHH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial thinnings, slash, brush, or byproduct from 
conversion oftrees to merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil- or other-fuel-firedcombustion 
device used to produce heat and to transfer heat torecirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BBB, FFF, and III of this part, to 
transferand otherwise dispose of CAIR SO2 allowances held in 
thegeneral account and, with regard to a compliance account, the 
CAIRdesignated representative of the source.
    CAIR designated representative means, for a CAIRSO2 
source and each CAIR SO2 unit at thesource, the natural 
person who is authorized by the owners andoperators of the source and 
all such units at the source, inaccordance

[[Page 775]]

with subparts BBB and III of this part, to representand legally bind 
each owner and operator in matters pertaining to theCAIR SO2 
Trading Program. If the CAIR SO2source is also a CAIR 
NOX source, then this natural personshall be the same person 
as the CAIR designated representative underthe CAIR NOX 
Annual Trading Program. If the CAIRSO2 source is also a CAIR 
NOX Ozone Seasonsource, then this natural person shall be the 
same person as the CAIRdesignated representative under the CAIR 
NOX Ozone SeasonTrading Program. If the CAIR SO2 
source is also subject tothe Acid Rain Program, then this natural person 
shall be the sameperson as the designated representative under the Acid 
Rain Program.If the CAIR SO2 source is also subject to the Hg 
BudgetTrading Program, then this natural person shall be the same person 
asthe Hg designated representative under the Hg Budget Trading Program.
    CAIR NO X Annual Trading Program means amulti-state 
nitrogen oxides air pollution control and emissionreduction program 
approved and administered by the Administrator inaccordance with 
subparts AA through II of this part andSec. 51.123(o)(1) or (2) of this 
chapter or established bythe Administrator in accordance with subparts 
AA through II of part 97of this chapter and Sec. Sec. 51.123(p) and 
52.35 of thischapter, as a means of mitigating interstate transport of 
fineparticulates and nitrogen oxides.
    CAIR NOX Ozone Season source means asource that includes one or more 
CAIR NOX Ozone Seasonunits.
    CAIR NOX Ozone Season Trading Programmeans a multi-state nitrogen 
oxides air pollution control and emissionreduction program approved and 
administered by the Administrator inaccordance with subparts AAAA 
through IIII of this part andSec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), or (dd) ofthis chapter or established by the Administrator in 
accordance withsubparts AA through II of part 97 of this chapter 
andSec. Sec. 51.123(p) and 52.35 of this chapter, as a meansof 
mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source that issubject to the CAIR 
NOX Ozone Season Trading Program.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CCC of this part, including anypermit revisions, 
specifying the CAIR SO2 Trading Programrequirements 
applicable to a CAIR SO2 source, to each CAIRSO2 
unit at the source, and to the owners and operatorsand the CAIR 
designated representative of the source and each suchunit.
    CAIR SO2 allowance means a limitedauthorization issued by the 
Administrator under the Acid Rain Program,or by a permitting authority 
under provisions of a Stateimplementation plan that are approved under 
Sec. 51.124(o)(1) or (2) or (r) of this chapter or Sec. 97.288 of 
thischapter,'', by designating the last sentence of the definitionas 
paragraph (4), and by revising in paragraph (4) the words``(Program or 
under the provisions of a State implementationplan that is approved 
under Sec. 51.124(o)(1) or (2) of thischapter'' to read ``(Program, 
provisions of a Stateimplementation plan that are approved under Sec. 
51.124(o)(1) or (2) or (r) of this chapter, or Sec. 97.288 of 
thischapter, to emit sulfur dioxide during the control period of 
thespecified calendar year for which the authorization is allocated or 
ofany calendar year thereafter under the CAIR SO2 
TradingProgram as follows:
    (1) For one CAIR SO2 allowance allocated for a 
controlperiod in a year before 2010, one ton of sulfur dioxide, except 
asprovided in Sec. 96.254(b);
    (2) For one CAIR SO2 allowance allocated for a 
controlperiod in 2010 through 2014, 0.50 ton of sulfur dioxide, except 
asprovided in Sec. 96.254(b); and
    (3) For one CAIR SO2 allowance allocated for a 
controlperiod in 2015 or later, 0.35 ton of sulfur dioxide, except 
asprovided in Sec. 96.254(b).
    An authorization to emit sulfur dioxide that is not issued underthe 
Acid Rain Program or under the provisions of a Stateimplementation plan 
that is approved under Sec. 51.124(o)(1)or (2) of this chapter shall 
not be a CAIR SO2 allowance.
    CAIR SO2 allowance deduction or deductCAIR SO2 allowances means the 
permanentwithdrawal of CAIR SO2 allowances by the 
Administratorfrom a

[[Page 776]]

compliance account, e.g., in order to account for aspecified number of 
tons of total sulfur dioxide emissions from allCAIR SO2 units 
at a CAIR SO2 source for acontrol period, determined in 
accordance with subpart HHH of thispart, or to account for excess 
emissions.
    CAIR SO2 Allowance Tracking System meansthe system by which the 
Administrator records allocations, deductions,and transfers of CAIR 
SO2 allowances under the CAIRSO2 Trading Program. 
This is the same system as theAllowance Tracking System under Sec. 72.2 
of this chapter bywhich the Administrator records allocations, 
deduction, and transfersof Acid Rain SO2 allowances under the 
Acid Rain Program.
    CAIR SO2 Allowance Tracking System accountmeans an account in the 
CAIR SO2 Allowance Tracking Systemestablished by the 
Administrator for purposes of recording theallocation, holding, 
transferring, or deducting of CAIRSO2 allowances. Such 
allowances will be allocated, held,deducted, or transferred only as 
whole allowances.
    CAIR SO2 allowances held or hold CAIRSO2 allowances means the CAIR 
SO2allowances recorded by the Administrator, or submitted to 
theAdministrator for recordation, in accordance with subparts FFF, 
GGG,and III of this part or part 73 of this chapter, in a 
CAIRSO2 Allowance Tracking System account.
    CAIR SO2 emissions limitation means, for aCAIR SO2 
source, the tonnage equivalent, inSO2 emissions in a control 
period, of the CAIRSO2 allowances available for deduction for 
the sourceunder Sec. 96.254(a) and (b) for the control period.
    CAIR SO2 source means a source thatincludes one or more CAIR 
SO2 units.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reductionprogram approved and 
administered by the Administrator in accordancewith subparts AAA through 
III of this part andSec. 51.124(o)(1) or (2) of this chapter or 
established bythe Administrator in accordance with subparts AAA through 
III of part97 of this chapter and Sec. Sec. 51.124(r) and 52.36 ofthis 
chapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    CAIR SO2 unit means a unit that is subjectto the CAIR SO2 
Trading Program underSec. 96.204 and, except for purposes ofSec. 
96.205, a CAIR SO2 opt-in unit undersubpart III of this part.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous state) produced by the mechanical, thermal, orchemical 
processing of coal.
    Coal-fired means combusting any amount of coal or coal-derived fuel, 
alone, or in combination with any amount of any otherfuel.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit,
    (A) Useful thermal energy not less than 5 percent of total 
energyoutput; and
    (B) Useful power that, when added to one-half of useful 
thermalenergy produced, is not less then 42.5 percent of total energy 
input,if useful thermal energy produced is 15 percent or more of 
totalenergy output, or not less than 45 percent of total energy input, 
ifuseful thermal energy produced is less than 15 percent of total 
energyoutput.
    (ii) For a bottoming-cycle cogeneration unit, useful power notless 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:

[[Page 777]]

    (1) An enclosed device comprising a compressor, a combustor,and a 
turbine and in which the flue gas resulting from the combustionof fuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to generate electricity for sale or use, including testgeneration, 
except as provided in Sec. 96.205 andSec. 96.284(h).
    (i) For a unit that is a CAIR SO2 unit underSec. 96.204 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that subsequently undergoes a physical change(other than replacement of 
the unit by a unit at the same source),such date shall remain the date 
of commencement of commercialoperation of the unit, which shall continue 
to be treated as the sameunit.
    (ii) For a unit that is a CAIR SO2 unit underSec. 96.204 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that is subsequently replaced by a unit at thesame source (e.g., 
repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1) or (2) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 96.205, for a unit that is not a CAIRSO2 
unit under Sec. 96.204 on the later ofNovember 15, 1990 or the date the 
unit commences commercial operationas defined in paragraph (1) of this 
definition, the unit's date forcommencement of commercial operation 
shall be the date on which theunit becomes a CAIR SO2 unit 
under Sec. 96.204.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement of commercial operation, 
and the replacement unit shallbe treated as a separate unit with a 
separate date for commencement ofcommercial operation as defined in 
paragraph (1) or (2) of thisdefinition as appropriate.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 96.284(h).
    (2) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (3) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date shall remainthe replaced 
unit's date of commencement of operation, and thereplacement unit shall 
be treated as a separate unit with a separatedate for commencement of 
operation as defined in paragraph (1), (2),or (3) of this definition as 
appropriate, except as provided in(96.284(h).
    Compliance account means a CAIR SO2 AllowanceTracking 
System account, established by the Administrator for a 
CAIRSO2 source subject to an Acid Rain emissions 
limitationsunder Sec. 73.31(a) or (b) of this chapter or for any 
otherCAIR SO2 source under subpart FFF or III of this part, 
inwhich any CAIR SO2 allowance allocations for the 
CAIRSO2 units at the source are initially recorded and 
inwhich are held

[[Page 778]]

any CAIR SO2 allowances available foruse for a control period 
in order to meet the source's CAIRSO2 emissions limitation in 
accordance withSec. 96.254.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HHH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at leastonce every 15 minutes 
(using an automated data acquisition andhandling system (DAHS)), a 
permanent record of sulfur dioxideemissions, stack gas volumetric flow 
rate, stack gas moisture content,and oxygen or carbon dioxide 
concentration (as applicable), in amanner consistent with part 75 of 
this chapter. The following systemsare the principal types of continuous 
emission monitoring systemsrequired under subpart HHH of this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A sulfur dioxide monitoring system, consisting of 
aSO2 pollutant concentration monitor and an automated 
dataacquisition handling system and providing a permanent, 
continuousrecord of SO2 emissions, in parts per million 
(ppm);
    (3) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (4) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous 
record ofCO2 emissions, in percent CO2; and
    (5) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2in percent O2.
    Control period means the period beginning January 1 of acalendar 
year, except as provided in Sec. 96.206(c)(2), andending on December 31 
of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the CAIR designated representative and as determinedby the 
Administrator in accordance with subpart HHH of this part.
    Excess emissions means any ton, or portion of a ton, ofsulfur 
dioxide emitted by the CAIR SO2 units at a CAIRSO2 
source during a control period that exceeds the CAIRSO2 
emissions limitation for the source, provided that anyportion of a ton 
of excess emissions shall be treated as one ton ofexcess emissions.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    General account means a CAIR SO2 AllowanceTracking System 
account, established under subpart FFF of this part,that is not a 
compliance account.
    Generator means a device that produces electricity.
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the CAIR designatedrepresentative and 
determined by the Administrator in accordance withsubpart HHH of this 
part and excluding the heat derived from preheatedcombustion air, 
recirculated flue gases, or exhaust from othersources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Hg Budget Trading Program means a multi-state Hg airpollution 
control

[[Page 779]]

and emission reduction program approved andadministered by the 
Administrator in accordance subpart HHHH of part60 of this chapter and 
Sec. 60.24(h)(6), or established bythe Administrator under section 111 
of the Clean Air Act, as a meansof reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in Btu/hr) that a unit is capable of combusting on a steadystate basis 
as of the initial installation of the unit as specified bythe 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HHH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal SO2 emissionslimitation 
means, with regard to a unit, the lowest SO2emissions 
limitation (in terms of lb/mmBtu) that is applicable to theunit under 
State or Federal law, regardless of the averaging period towhich the 
emissions limitation applies.
    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe) that thegenerator is capable of producing on a steady 
state basis and duringcontinuous operation (when not restricted by 
seasonal or otherderatings), such increased maximum amount as of such 
completion asspecified by the person conducting the physical change.
    Operator means any person who operates, controls, orsupervises a 
CAIR SO2 unit or a CAIR SO2source and shall 
include, but not be limited to, any holding company,utility system, or 
plant manager of such a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR SO2 source or a 
CAIRSO2 unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR SO2 unit at the source or the CAIR SO2unit;
    (ii) Any holder of a leasehold interest in a CAIR SO2unit 
at the source or the CAIR SO2 unit; or
    (iii) Any purchaser of power from a CAIR SO2 unit atthe 
source or the CAIR SO2 unit under a life-of-the-unit,firm 
power contractual arrangement; provided that, unless expresslyprovided 
for in a leasehold agreement, owner shall not include apassive lessor, 
or a person who has an equitable interest through suchlessor, whose 
rental payments are not based (either directly orindirectly) on the 
revenues or income from such CAIR SO2unit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR SO2 
allowancesheld in the general account and who is subject to the 
bindingagreement for the CAIR authorized account representative to 
representthe person's ownership interest with respect to CAIR 
SO2allowances.
    Permitting authority means the State air pollution controlagency, 
local

[[Page 780]]

agency, other State agency, or other agencyauthorized by the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR SO2 Trading Program or, if nosuch agency has been so 
authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence, by 
the permitting authority or the Administrator inthe regular course of 
business.
    Recordation, record, or recorded means, with regard toCAIR 
SO2 allowances, the movement of CAIR SO2allowances 
by the Administrator into or between CAIR SO2Allowance 
Tracking System accounts, for purposes of allocation,transfer, or 
deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regardto a unit, the 
demolishing of a unit, or the permanent shutdown andpermanent disabling 
of a unit, and the construction of another unit(the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance of technology in widespread commercial use as of 
January1, 2005.
    Serial number means, for a CAIR SO2 allowance,the unique 
identification number assigned to each CAIR SO2allowance by 
the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''
    State means one of the States or the District of Columbiathat adopts 
the CAIR SO2 Trading Program pursuant toSec. 51.124 (o)(1) 
or (2) of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean

[[Page 781]]

Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR SO2 emissions limitation, totaltons of sulfur 
dioxide emissions for a control period shall becalculated as the sum of 
all recorded hourly emissions (or the massequivalent of the recorded 
hourly emission rates) in accordance withsubpart HHH of this part, but 
with any remaining fraction of a tonequal to or greater than 0.50 tons 
deemed to equal one ton and anyremaining fraction of a ton less than 
0.50 tons deemed to equal zerotons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:


LHV = HHV-10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.

    Total energy output means, with regard to a cogenerationunit, the 
sum of useful power and useful thermal energy produced bythe 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogenerationunit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating ordomestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermalenergy used by 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25385, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006; 72 FR 59206, Oct. 19, 2007]

    Editorial Note: At 71 FR 25386, Apr. 28, 2005,Sec. 96.202 was 
amended in the definition of ``CAIRNOX Ozone Season source'', 
by revising the words``includes one or more CAIR NOX Ozone 
Seasonunit'' to read ``is subject to the CAIR NOXOzone Season 
Trading Program''; however, those words do notexist in this section and 
the amendment could not be incorporated.

    Editorial Note: At 71 FR 74794, Dec. 13, 2006,Sec. 96.202 was 
amended in the definition of ``CAIRSO2 allowance'' in 
paragraph (4), by revising thewords ``(Program, provisions'' to read 
``Program,provisions''; however, paragraph (4) does not exist in 
thissection and the amendment could not be incorporated.



Sec. 96.203  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BBB through III are defined as follows:

Btu--British thermal unit
CO2--carbon dioxide
H2O--water
Hg--mercury
 hr--hour
kW--kilowatt electrical
kWh--kilowatt hour

[[Page 782]]

lb--pound
mmBtu--million Btu
MWe--megawatt electrical
MWh--megawatt hour
NOX--nitrogen oxides
O2--oxygen
ppm--parts per million
scfh--standard cubic feet per hour
SO2--sulfur dioxide
 yr--year

[71 FR 25387, Apr. 28, 2006]



Sec. 96.204  Applicability.

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR 
SO2units, and any source that includes one or more such units 
shall be aCAIR SO2 source, subject to the requirements of 
thissubpart and subparts BBB through HHH of this part: any 
stationary,fossil-fuel-fired boiler or stationary, fossil-fuel-fired 
combustionturbine serving at any time, since the later of November 15, 
1990 orthe start-up of the unit's combustion chamber, a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale.
    (2) If a stationary boiler or stationary combustion turbine 
that,under paragraph (a)(1) of this section, is not a CAIR 
SO2unit begins to combust fossil fuel or to serve a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale,the unit shall become a CAIR SO2 unit as provided 
inparagraph (a)(1) of this section on the first date on which it 
bothcombusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR SO2 units:
    (1)(i) Any unit that is a CAIR SO2 unit underparagraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of the unit's potential electric output capacityor 219,000 
MWh, whichever is greater, to any utility powerdistribution system for 
sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR SO2 unitstarting on the earlier 
of January 1 after the first calendar yearduring which the unit first no 
longer qualifies as a cogeneration unitor January 1 after the first 
calendar year during which the unit nolonger meets the requirements of 
paragraph (b)(1)(i)(B) of thissection.
    (2)(i) Any unit that is a CAIR SO2 unit underparagraph 
(a)(1) or (2) of this section commencing operation beforeJanuary 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR SO2 unit under 
paragraph(a)(1) or (2) of this section commencing operation on or after 
January1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the requirements of paragraph (b)(2)(i) or (ii) of this 
sectionfor at least 3 consecutive calendar years, but subsequently no 
longermeets all such requirements, the unit shall become a 
CAIRSO2 unit starting on the earlier of January 1 after 
thefirst calendar year during which the unit first no

[[Page 783]]

longerqualifies as a solid waste incineration unit or January 1 after 
thefirst 3 consecutive calendar years after 1990 for which the unit 
hasan average annual fuel consumption of fossil fuel of 20 percent 
ormore.

[71 FR 25387, Apr. 28, 2006]



Sec. 96.205  Retired unit exemption.

    (a)(1) Any CAIR SO2 unit that is permanently retiredand 
is not a CAIR SO2 opt-in unit under subpart III ofthis part 
shall be exempt from the CAIR SO2 TradingProgram, except for 
the provisions of this section,Sec. 96.202, Sec. 96.203, Sec. 
96.204,Sec. 96.206(c)(4) through (7), Sec. 96.207,Sec. 96.208, and 
subparts BBB, FFF, and GGG of this part.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR SO2 unit ispermanently 
retired. Within 30 days of the unit's permanentretirement, the CAIR 
designated representative shall submit astatement to the permitting 
authority otherwise responsible foradministering any CAIR permit for the 
unit and shall submit a copy ofthe statement to the Administrator. The 
statement shall state, in aformat prescribed by the permitting 
authority, that the unit waspermanently retired on a specific date and 
will comply with therequirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCCC of this part covering the source at which the unit is located 
toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any sulfur dioxide, starting on thedate that the 
exemption takes effect.
    (2) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain, at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records may be extended for cause, at any time before 
theend of the period, in writing by the permitting authority or 
theAdministrator. The owners and operators bear the burden of proof 
thatthe unit is permanently retired.
    (3) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRSO2 
Trading Program concerning all periods for which theexemption is not in 
effect, even if such requirements arise, or mustbe complied with, after 
the exemption takes effect.
    (4) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 96.222for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2010 or thedate on which the unit resumes 
operation.
    (5) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(4) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(4) of this section to submit a CAIRpermit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the 
CAIRdesignated representative is not required to submit a CAIR 
permitapplication for the unit.
    (6) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HHH of this part, a unit 
thatloses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]

[[Page 784]]



Sec. 96.206  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR SO2 source required to have atitle V operating 
permit and each CAIR SO2 unit requiredto have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 96.222 in accordance with thedeadlines 
specified in Sec. 96.221; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR SO2 
sourcerequired to have a title V operating permit and each 
CAIRSO2 unit required to have a title V operating permit 
atthe source shall have a CAIR permit issued by the permitting 
authorityunder subpart CCC of this part for the source and operate the 
sourceand the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart III of this part, the owners 
andoperators of a CAIR SO2 source that is not 
otherwiserequired to have a title V operating permit and each 
CAIRSO2 unit that is not otherwise required to have a title 
Voperating permit are not required to submit a CAIR permit 
application,and to have a CAIR permit, under subpart CCC of this part 
for suchCAIR SO2 source and such CAIR SO2 unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR SO2 source and each CAIR SO2 unitat the 
source shall comply with the monitoring, reporting, andrecordkeeping 
requirements of subpart HHH of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HHH of this part shall be used to determine 
compliance byeach CAIR SO2 source with the CAIR 
SO2emissions limitation under paragraph (c) of this section.
    (c) Sulfur dioxide emission requirements. (1) As of theallowance 
transfer deadline for a control period, the owners andoperators of each 
CAIR SO2 source and each CAIRSO2 unit at the 
source shall hold, in the source'scompliance account, a tonnage 
equivalent in CAIR SO2allowances available for compliance 
deductions for the control period,as determined in accordance with Sec. 
96.254(a) and (b), notless than the tons of total sulfur dioxide 
emissions for the controlperiod from all CAIR SO2 units at 
the source, asdetermined in accordance with subpart HHH of this part.
    (2) A CAIR SO2 unit shall be subject to therequirements 
under paragraph (c)(1) of this section for the controlperiod starting on 
the later of January 1, 2010 or the deadline formeeting the unit's 
monitor certification requirements underSec. 96.270(b)(1), (2), or (5) 
and for each control periodthereafter.
    (3) A CAIR SO2 allowance shall not be deducted, 
forcompliance with the requirements under paragraph (c)(1) of 
thissection, for a control period in a calendar year before the year 
forwhich the CAIR SO2 allowance was allocated.
    (4) CAIR SO2 allowances shall be held in, deductedfrom, 
or transferred into or among CAIR SO2 AllowanceTracking 
System accounts in accordance with subparts FFF, GGG, and IIIof this 
part.
    (5) A CAIR SO2 allowance is a limited authorization 
toemit sulfur dioxide in accordance with the CAIR SO2Trading 
Program. No provision of the CAIR SO2 TradingProgram, the 
CAIR permit application, the CAIR permit, or an exemptionunder Sec. 
96.205 and no provision of law shall be construedto limit the authority 
of the State or the United States to terminateor limit such 
authorization.
    (6) A CAIR SO2 allowance does not constitute aproperty 
right.
    (7) Upon recordation by the Administrator under subpart FFF, GGG,or 
III of this part, every allocation, transfer, or deduction of aCAIR 
SO2 allowance to or from a CAIR SO2source's 
compliance account is incorporated automatically in any CAIRpermit of 
the source.
    (d) Excess emissions requirements-- If a CAIRSO2 source 
emits sulfur dioxide during any control periodin excess of the CAIR 
SO2 emissions limitation, then:
    (1) The owners and operators of the source and each 
CAIRSO2 unit at the

[[Page 785]]

source shall surrender the CAIRSO2 allowances required for 
deduction underSec. 96.254(d)(1) and pay any fine, penalty, or 
assessmentor comply with any other remedy imposed, for the same 
violations,under the Clean Air Act or applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRSO2 source and 
each CAIR SO2 unit at thesource shall keep on site at the 
source each of the followingdocuments for a period of 5 years from the 
date the document iscreated. This period may be extended for cause, at 
any time before theend of 5 years, in writing by the permitting 
authority or theAdministrator.
    (i) The certificate of representation under Sec. 96.213for the CAIR 
designated representative for the source and each CAIRSO2 
unit at the source and all documents that demonstratethe truth of the 
statements in the certificate of representation;provided that the 
certificate and documents shall be retained on siteat the source beyond 
such 5-year period until such documents aresuperseded because of the 
submission of a new certificate ofrepresentation under Sec. 96.213 
changing the CAIRdesignated representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HHH of this part, provided that to the extent that subpart HHHof this 
part provides for a 3-year period for recordkeeping, the 3-year period 
shall apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
CAIRSO2 Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the CAIR 
SO2Trading Program or to demonstrate compliance with the 
requirements ofthe CAIR SO2 Trading Program.
    (2) The CAIR designated representative of a CAIR 
SO2source and each CAIR SO2 unit at the source 
shall submitthe reports required under the CAIR SO2 Trading 
Program,including those under subpart HHH of this part.
    (f) Liability. (1) Each CAIR SO2 source and eachCAIR 
SO2 unit shall meet the requirements of the 
CAIRSO2 Trading Program.
    (2) Any provision of the CAIR SO2 Trading Program 
thatapplies to a CAIR SO2 source or the CAIR 
designatedrepresentative of a CAIR SO2 source shall also 
apply tothe owners and operators of such source and of the 
CAIRSO2 units at the source.
    (3) Any provision of the CAIR SO2 Trading Program 
thatapplies to a CAIR SO2 unit or the CAIR 
designatedrepresentative of a CAIR SO2 unit shall also apply 
to theowners and operators of such unit.
    (g) Effect on other authorities. No provision of the 
CAIRSO2 Trading Program, a CAIR permit application, a 
CAIRpermit, or an exemption under Sec. 96.205 shall be construedas 
exempting or excluding the owners and operators, and the CAIRdesignated 
representative, of a CAIR SO2 source or CAIRSO2 
unit from compliance with any other provision of theapplicable, approved 
State implementation plan, a federallyenforceable permit, or the Clean 
Air Act.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.207  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR SO2 Trading Program, to begin on the occurrence of 
anact or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR SO2 Trading Program, to begin before the occurrenceof 
an act or event shall be computed so that the period ends the daybefore 
the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR SO2 Trading Program, falls on a weekend 
ora State or Federal holiday, the time period shall be extended to 
thenext business day.



Sec. 96.208  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR

[[Page 786]]

SO2 Trading Program are set forth in part 78 ofthis chapter.



     Subpart BBB_CAIR Designated Representative for CAIRSO2 Sources

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.210  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 96.211, each CAIRSO2 
source, including all CAIR SO2 units atthe source, shall have 
one and only one CAIR designatedrepresentative, with regard to all 
matters under the CAIRSO2 Trading Program concerning the 
source or any CAIRSO2 unit at the source.
    (b) The CAIR designated representative of the CAIR 
SO2source shall be selected by an agreement binding on the 
owners andoperators of the source and all CAIR SO2 units at 
thesource and shall act in accordance with the certification statement 
inSec. 96.213(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.213, the CAIR designatedrepresentative 
of the source shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachowner and operator 
of the CAIR SO2 source represented andeach CAIR 
SO2 unit at the source in all matters pertainingto the CAIR 
SO2 Trading Program, notwithstanding anyagreement between the 
CAIR designated representative and such ownersand operators. The owners 
and operators shall be bound by any decisionor order issued to the CAIR 
designated representative by thepermitting authority, the Administrator, 
or a court regarding thesource or unit.
    (d) No CAIR permit will be issued, no emissions data reports willbe 
accepted, and no CAIR SO2 Allowance Tracking Systemaccount 
will be established for a CAIR SO2 unit at asource, until the 
Administrator has received a complete certificate ofrepresentation under 
Sec. 96.213 for a CAIR designatedrepresentative of the source and the 
CAIR SO2 units at thesource.
    (e)(1) Each submission under the CAIR SO2 TradingProgram 
shall be submitted, signed, and certified by the CAIRdesignated 
representative for each CAIR SO2 source onbehalf of which the 
submission is made. Each such submission shallinclude the following 
certification statement by the CAIR designatedrepresentative: ``I am 
authorized to make this submission onbehalf of the owners and operators 
of the source or units for whichthe submission is made. I certify under 
penalty of law that I havepersonally examined, and am familiar with, the 
statements andinformation submitted in this document and all its 
attachments. Basedon my inquiry of those individuals with primary 
responsibility forobtaining the information, I certify that the 
statements andinformation are to the best of my knowledge and belief 
true, accurate,and complete. I am aware that there are significant 
penalties forsubmitting false statements and information or omitting 
requiredstatements and information, including the possibility of fine 
orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRSO2 source or a CAIR SO2 unit only if 
thesubmission has been made, signed, and certified in accordance 
withparagraph (e)(1) of this section.



Sec. 96.211  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.213may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.213, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.

[[Page 787]]

    (c) Except in this section and Sec. Sec. 96.202,96.210(a) and (d), 
96.212, 96.213, 96.215, 96.251, and 96.282,whenever the term ``CAIR 
designated representative'' isused in subparts AAA through III of this 
part, the term shall beconstrued to include the CAIR designated 
representative or anyalternate CAIR designated representative.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]



Sec. 96.212  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any time upon receipt bythe 
Administrator of a superseding complete certificate ofrepresentation 
under Sec. 96.213. Notwithstanding any suchchange, all representations, 
actions, inactions, and submissions bythe previous CAIR designated 
representative before the time and datewhen the Administrator receives 
the superseding certificate ofrepresentation shall be binding on the new 
CAIR designatedrepresentative and the owners and operators of the 
CAIRSO2 source and the CAIR SO2 units at 
thesource.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under Sec. 96.213.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative and 
theowners and operators of the CAIR SO2 source and the 
CAIRSO2 units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR SO2 source or a CAIRSO2 unit is 
not included in the list of owners andoperators in the certificate of 
representation underSec. 96.213, such owner or operator shall be deemed 
to besubject to and bound by the certificate of representation, 
therepresentations, actions, inactions, and submissions of the 
CAIRdesignated representative and any alternate CAIR 
designatedrepresentative of the source or unit, and the decisions and 
orders ofthe permitting authority, the Administrator, or a court, as if 
theowner or operator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR SO2 source or a CAIR SO2unit, including 
the addition of a new owner or operator, the CAIRdesignated 
representative or any alternate CAIR designatedrepresentative shall 
submit a revision to the certificate ofrepresentation under Sec. 96.213 
amending the list of ownersand operators to include the change.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]



Sec. 96.213  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR SO2 source, and eachCAIR 
SO2 unit at the source, for which the certificate 
ofrepresentation is submitted, including identification and 
nameplatecapacity of each generator served by each such unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
SO2source and of each CAIR SO2 unit at the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR SO2 unit at the source.''

[[Page 788]]

    (ii) ``I certify that I have all the necessaryauthority to carry out 
my duties and responsibilities under the CAIRSO2 Trading 
Program on behalf of the owners and operatorsof the source and of each 
CAIR SO2 unit at the source andthat each such owner and 
operator shall be fully bound by myrepresentations, actions, inactions, 
or submissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR SO2 unit at the source shall bebound by any order 
issued to me by the Administrator, the permittingauthority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal orequitable title 
to, or a leasehold interest in, a CAIR SO2unit, or where a 
utility or industrial customer purchases power from aCAIR SO2 
unit under a life-of-the-unit, firm powercontractual arrangement, I 
certify that: I have given a written noticeof my selection as the `CAIR 
designated representative'or `alternate CAIR designated representative', 
asapplicable, and of the agreement by which I was selected to each 
ownerand operator of the source and of each CAIR SO2 unit 
atthe source; and CAIR SO2 allowances and proceeds 
oftransactions involving CAIR SO2 allowances will be deemedto 
be held or distributed in proportion to each holder's legal,equitable, 
leasehold, or contractual reservation or entitlement,except that, if 
such multiple holders have expressly provided for adifferent 
distribution of CAIR SO2 allowances by contract,CAIR 
SO2 allowances and proceeds of transactions involvingCAIR 
SO2 allowances will be deemed to be held ordistributed in 
accordance with the contract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
certificateof representation shall not be submitted to the permitting 
authorityor the Administrator. Neither the permitting authority nor 
theAdministrator shall be under any obligation to review or evaluate 
thesufficiency of such documents, if submitted.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]



Sec. 96.214  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 96.213 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
96.213 is received by theAdministrator.
    (b) Except as provided in Sec. 96.212(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
SO2 Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR SO2 allowance transfers.



Sec. 96.215  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with

[[Page 789]]

paragraph (a)or (b) of this section, the CAIR designated representative 
oralternate CAIR designated representative, as appropriate, must 
submitto the Administrator a notice of delegation, in a format 
prescribed bythe Administrator, that includes the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person``referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate CAIR designated 
representative, as appropriate, andbefore this notice of delegation is 
superseded by another notice ofdelegation under 40 CFR 96.215(d) shall 
be deemed to be an electronicsubmission by me.''
    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 96.215(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
96.215 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of 
thissection shall be effective, with regard to the CAIR 
designatedrepresentative or alternate CAIR designated representative 
identifiedin such notice, upon receipt of such notice by the 
Administrator anduntil receipt by the Administrator of a superseding 
notice ofdelegation submitted by such CAIR designated representative 
oralternate CAIR designated representative, as appropriate. 
Thesuperseding notice of delegation may replace any previously 
identifiedagent, add a new agent, or eliminate entirely any delegation 
ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.

[71 FR 25388, Apr. 28, 2006, as amended at 71 FR 74794, Dec.13, 2006]



                           Subpart CCC_Permits

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.220  General CAIR SO[bdi2] Trading Program permit requirements.

    (a) For each CAIR SO2 source required to have a titleV 
operating permit or required, under subpart III of this part, tohave a 
title V operating permit or other federally enforceable permit,such 
permit shall include a CAIR permit administered by the 
permittingauthority for the title V operating permit or the 
federallyenforceable permit as applicable. The CAIR portion of the title 
Vpermit or other federally enforceable permit as applicable shall 
beadministered in accordance with the permitting authority's title 
Voperating permits regulations promulgated under part 70 or 71 of 
thischapter or the permitting authority's regulations for other 
federallyenforceable permits as applicable, except as provided otherwise 
bySec. 96.205, this subpart, and subpart III of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRSO2 source and the CAIR SO2 units at thesource 
covered by the CAIR permit, all applicable CAIR SO2Trading 
Program, CAIR NOX Annual Trading Program, and 
CAIRNOX Ozone Season Trading Program requirements and shall 
bea complete and

[[Page 790]]

separable portion of the title V operating permitor other federally 
enforceable permit under paragraph (a) of thissection.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]



Sec. 96.221  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
SO2 source required to have a title V operatingpermit shall 
submit to the permitting authority a complete CAIR permitapplication 
under Sec. 96.222 for the source covering eachCAIR SO2 unit 
at the source at least 18 months (or suchlesser time provided by the 
permitting authority) before the later ofJanuary 1, 2010 or the date on 
which the CAIR SO2 unitcommences commercial operation, except 
as provided inSec. 96.283(a).
    (b) Duty to Reapply. For a CAIR SO2 sourcerequired to 
have a title V operating permit, the CAIR designatedrepresentative shall 
submit a complete CAIR permit application underSec. 96.222 for the 
source covering each CAIRSO2 unit at the source to renew the 
CAIR permit inaccordance with the permitting authority's title V 
operating permitsregulations addressing permit renewal, except as 
provided inSec. 96.283(b).

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006]



Sec. 96.222  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR SO2 source for which 
theapplication is submitted, in a format prescribed by the 
permittingauthority:
    (a) Identification of the CAIR SO2 source;
    (b) Identification of each CAIR SO2 unit at the 
CAIRSO2 source; and
    (c) The standard requirements under Sec. 96.206.



Sec. 96.223  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all elements required for a complete CAIR 
permitapplication under Sec. 96.222.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 96.202 and, upon recordationby the 
Administrator under subpart FFF, GGG, or III of this part,every 
allocation, transfer, or deduction of a CAIR SO2allowance to 
or from the compliance account of the CAIRSO2 source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRSO2 source's title V operating permit or other 
federallyenforceable permit as applicable.



Sec. 96.224  CAIR permit revisions.

    Except as provided in Sec. 96.223(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subparts DDD--EEE [Reserved]



              Subpart FFF_CAIR SO2 Allowance TrackingSystem

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.250  [Reserved]



Sec. 96.251  Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 96.284(e), upon 
receipt of a complete certificate ofrepresentation under Sec. 96.213, 
the Administrator willestablish a compliance account for the CAIR 
SO2 source forwhich the certificate of representation was 
submitted, unless thesource already has a compliance account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR SO2 allowances.An application for a general 
account may designate one and only oneCAIR authorized account 
representative and one and only one alternateCAIR authorized account

[[Page 791]]

representative who may act on behalf ofthe CAIR authorized account 
representative. The agreement by which thealternate CAIR authorized 
account representative is selected shallinclude a procedure for 
authorizing the alternate CAIR authorizedaccount representative to act 
in lieu of the CAIR authorized accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of the CAIRauthorized account 
representative and any alternate CAIR authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR SO2 allowances held inthe general account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount representative, as applicable, by an agreement that is 
bindingon all persons who have an ownership interest with respect to 
CAIRSO2 allowances held in the general account. I certify 
thatI have all the necessary authority to carry out my duties 
andresponsibilities under the CAIR SO2 Trading Program 
onbehalf of such persons and that each such person shall be fully 
boundby my representations, actions, inactions, or submissions and by 
anyorder or decision issued to me by the Administrator or a 
courtregarding the general account.''
    (E) The signature of the CAIR authorized account representativeand 
any alternate CAIR authorized account representative and the 
datessigned.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receiptby 
the Administrator of a complete application for a general accountunder 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR SO2 allowances held in the generalaccount in all matters 
pertaining to the CAIR SO2 TradingProgram, notwithstanding 
any agreement between the CAIR authorizedaccount representative or any 
alternate CAIR authorized accountrepresentative and such person. Any 
such person shall be bound by anyorder or decision issued to the CAIR 
authorized account representativeor any alternate CAIR authorized 
account representative by theAdministrator or a court regarding the 
general account.
    (C) Any representation, action, inaction, or submission by 
anyalternate CAIR authorized account representative shall be deemed to 
bea representation, action, inaction, or submission by the 
CAIRauthorized account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to CAIRSO2 allowances held in the general account. Each 
suchsubmission

[[Page 792]]

shall include the following certification statement bythe CAIR 
authorized account representative or any alternate CAIRauthorized 
account representative: ``I am authorized to makethis submission on 
behalf of the persons having an ownership interestwith respect to the 
CAIR SO2 allowances held in thegeneral account. I certify 
under penalty of law that I have personallyexamined, and am familiar 
with, the statements and informationsubmitted in this document and all 
its attachments. Based on myinquiry of those individuals with primary 
responsibility for obtainingthe information, I certify that the 
statements and information are tothe best of my knowledge and belief 
true, accurate, and complete. I amaware that there are significant 
penalties for submitting falsestatements and information or omitting 
required statements andinformation, including the possibility of fine 
orimprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by the Administrator of a 
superseding complete application fora general account under paragraph 
(b)(1) of this section.Notwithstanding any such change, all 
representations, actions,inactions, and submissions by the previous CAIR 
authorized accountrepresentative before the time and date when the 
Administratorreceives the superseding application for a general account 
shall bebinding on the new CAIR authorized account representative and 
thepersons with an ownership interest with respect to the 
CAIRSO2 allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a superseding complete application for a 
generalaccount under paragraph (b)(1) of this section. Notwithstanding 
anysuch change, all representations, actions, inactions, and 
submissionsby the previous alternate CAIR authorized account 
representativebefore the time and date when the Administrator receives 
thesuperseding application for a general account shall be binding on 
thenew alternate CAIR authorized account representative and the 
personswith an ownership interest with respect to the CAIR 
SO2allowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR SO2 allowances in the general account 
isnot included in the list of such persons in the application for 
ageneral account, such person shall be deemed to be subject to andbound 
by the application for a general account, the representation,actions, 
inactions, and submissions of the CAIR authorized accountrepresentative 
and any alternate CAIR authorized accountrepresentative of the account, 
and the decisions and orders of theAdministrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR SO2 allowances 
inthe general account, including the addition of a new person, the 
CAIRauthorized account representative or any alternate CAIR 
authorizedaccount representative shall submit a revision to the 
application fora general account amending the list of persons having an 
ownershipinterest with respect to the CAIR SO2 allowances in 
thegeneral account to include the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.

[[Page 793]]

    (ii) Except as provided in paragraph (b)(3)(i) or (ii) ofthis 
section, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternate CAIR authorized account representative or 
thefinality of any decision or order by the Administrator under the 
CAIRSO2 Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate 
CAIR authorized account representative for a generalaccount, including 
private legal disputes concerning the proceeds ofCAIR SO2 
allowance transfers.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
theAdministrator provided for or required under subparts FFF and GGG 
ofthis part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FFF and GGG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR authorized 
accountrepresentative or alternate CAIR authorized account 
representative;
    (B) The name, address, e-mail address, telephone number, 
and,facsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 96.251(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``Until this notice of delegation is supersededby 
another notice of delegation under 40 CFR 96.251 (b)(5)(iv), Iagree to 
maintain an e-mail account and to notify the Administratorimmediately of 
any change in my e-mail address unless all delegationof authority by me 
under 40 CFR 96.251 (b)(5) is terminated.''
    (iv) A notice of delegation submitted under paragraph (b)(5)(iii)of 
this section shall be effective, with regard to the CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative, as appropriate. The superseding notice of 
delegationmay replace any previously identified agent, add a new agent, 
or

[[Page 794]]

eliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.252  Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR SO2 
AllowanceTracking System account, all submissions to the 
Administratorpertaining to the account, including, but not limited to, 
submissionsconcerning the deduction or transfer of CAIR 
SO2allowances in the account, shall be made only by the CAIR 
authorizedaccount representative for the account.



Sec. 96.253  Recordation of CAIR SO[bdi2] allowances.

    (a)(1) After a compliance account is established underSec. 
96.251(a) or Sec. 73.31(a) or (b) of thischapter, the Administrator 
will record in the compliance account anyCAIR SO2 allowance 
allocated to any CAIR SO2unit at the source for each of the 
30 years starting the later of 2010or the year in which the compliance 
account is established and anyCAIR SO2 allowance allocated 
for each of the 30 yearsstarting the later of 2010 or the year in which 
the compliance accountis established and transferred to the source in 
accordance withsubpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator 
hascompleted all deductions under Sec. 96.254(b), theAdministrator will 
record in the compliance account any CAIRSO2 allowance 
allocated to any CAIR SO2 unitat the source for the new 30th 
year (i.e., the year that is 30years after the calendar year for which 
such deductions are or couldbe made) and any CAIR SO2 
allowance allocated for the new30th year and transferred to the source 
in accordance with subpart GGGof this part or subpart D of part 73 of 
this chapter.
    (b)(1) After a general account is established underSec. 96.251(b) 
or Sec. 73.31(c) of this chapter,the Administrator will record in the 
general account any CAIRSO2 allowance allocated for each of 
the 30 years startingthe later of 2010 or the year in which the general 
account isestablished and transferred to the general account in 
accordance withsubpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator 
hascompleted all deductions under Sec. 96.254(b), theAdministrator will 
record in the general account any CAIRSO2 allowance allocated 
for the new 30th year (i.e.,the year that is 30 years after the calendar 
year for which suchdeductions are or could be made) and transferred to 
the generalaccount in accordance with subpart GGG of this part or 
subpart D ofpart 73 of this chapter.
    (c) Serial numbers for allocated CAIR SO2allowances. When 
recording the allocation of CAIRSO2 allowances issued by a 
permitting authority underSec. 96.288, the Administrator will assign 
each such CAIRSO2 allowance a unique identification number 
that willinclude digits identifying the year of the control period for 
whichthe CAIR SO2 allowance is allocated.



Sec. 96.254  Compliance with CAIR SO[bdi2] emissions limitation.

    (a) Allowance transfer deadline. The CAIR SO2allowances 
are available to be deducted for compliance with a source'sCAIR 
SO2 emissions limitation for a control period in agiven 
calendar year only if the CAIR SO2 allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR SO2 allowance transfercorrectly submitted 
for recordation

[[Page 795]]

underSec. Sec. 96.260 and 96.261 by the allowance transferdeadline for 
the control period.
    (b) Deductions for compliance. Following the recordation, 
inaccordance with Sec. 96.261, of CAIR SO2allowance 
transfers submitted for recordation in a source's complianceaccount by 
the allowance transfer deadline for a control period, theAdministrator 
will deduct from the compliance account CAIRSO2 allowances 
available under paragraph (a) of thissection in order to determine 
whether the source meets the CAIRSO2 emissions limitation for 
the control period asfollows:
    (1) For a CAIR SO2 source subject to an Acid 
Rainemissions limitation, the Administrator will, in the following 
order:
    (i) Deduct the amount of CAIR SO2 allowances,available 
under paragraph (a) of this section and not issued by apermitting 
authority under Sec. 96.288, that is requiredunder Sec. Sec. 73.35(b) 
and (c) of this part. If thereare sufficient CAIR SO2 
allowances to complete thisdeduction, the deduction will be treated as 
satisfying therequirements of Sec. Sec. 73.35(b) and (c) of 
thischapter.
    (ii) Deduct the amount of CAIR SO2 allowances, notissued 
by a permitting authority under Sec. 96.288, that isrequired under 
Sec. Sec. 73.35(d) and 77.5 of this part.If there are sufficient CAIR 
SO2 allowances to completethis deduction, the deduction will 
be treated as satisfying therequirements of Sec. Sec. 73.35(d) and 77.5 
of thischapter.
    (iii) Treating the CAIR SO2 allowances deducted 
underparagraph (b)(1)(i) of this section as also being deducted under 
thisparagraph (b)(1)(iii), deduct CAIR SO2 
allowancesavailable under paragraph (a) of this section (including any 
issued bya permitting authority under Sec. 96.288) in order todetermine 
whether the source meets the CAIR SO2 emissionslimitation for 
the control period, as follows:
    (A) Until the tonnage equivalent of the CAIR 
SO2allowances deducted equals, or exceeds in accordance with 
paragraphs(c)(1) and (2) of this section, the number of tons of total 
sulfurdioxide emissions, determined in accordance with subpart HHH of 
thispart, from all CAIR SO2 units at the source for 
thecontrol period; or
    (B) If there are insufficient CAIR SO2 allowances 
tocomplete the deductions in paragraph (b)(1)(iii)(A) of this 
section,until no more CAIR SO2 allowances available 
underparagraph (a) of this section (including any issued by a 
permittingauthority under Sec. 96.288) remain in the complianceaccount.
    (2) For a CAIR SO2 source not subject to an Acid 
Rainemissions limitation, the Administrator will deduct 
CAIRSO2 allowances available under paragraph (a) of 
thissection (including any issued by a permitting authority underSec. 
96.288) in order to determine whether the source meetsthe CAIR 
SO2 emissions limitation for the control period,as follows:
    (i) Until the tonnage equivalent of the CAIR 
SO2allowances deducted equals, or exceeds in accordance with 
paragraphs(c)(1) and (2) of this section, the number of tons of total 
sulfurdioxide emissions, determined in accordance with subpart HHH of 
thispart, from all CAIR SO2 units at the source for 
thecontrol period; or
    (ii) If there are insufficient CAIR SO2 allowances 
tocomplete the deductions in paragraph (b)(2)(i) of this section, 
untilno more CAIR SO2 allowances available under paragraph 
(a)of this section (including any issued by a permitting authority 
underSec. 96.288) remain in the compliance account.
    (c)(1) Identification of CAIR SO2 allowancesby serial 
number. The CAIR authorized account representative for asource's 
compliance account may request that specific CAIRSO2 
allowances, identified by serial number, in thecompliance account be 
deducted for emissions or excess emissions for acontrol period in 
accordance with paragraph (b) or (d) of thissection. Such request shall 
be submitted to the Administrator by theallowance transfer deadline for 
the control period and include, in aformat prescribed by the 
Administrator, the identification of the CAIRSO2 source and 
the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRSO2 allowances

[[Page 796]]

under paragraph (b) or (d) of thissection from the source's compliance 
account, in the absence of anidentification or in the case of a partial 
identification of CAIRSO2 allowances by serial number under 
paragraph (c)(1) ofthis section, on a first-in, first-out (FIFO) 
accounting basis in thefollowing order:
    (i) Any CAIR SO2 allowances that were allocated to 
theunits at the source for a control period before 2010, in the order 
ofrecordation;
    (ii) Any CAIR SO2 allowances that were allocated toany 
entity for a control period before 2010 and transferred andrecorded in 
the compliance account pursuant to subpart GGG of thispart or subpart D 
of part 73 of this chapter, in the order ofrecordation;
    (iii) Any CAIR SO2 allowances that were allocated tothe 
units at the source for a control period during 2010 through 2014,in the 
order of recordation;
    (iv) Any CAIR SO2 allowances that were allocated toany 
entity for a control period during 2010 through 2014 andtransferred and 
recorded in the compliance account pursuant to subpartGGG of this part 
or subpart D of part 73 of this chapter, in the orderof recordation;
    (v) Any CAIR SO2 allowances that were allocated to 
theunits at the source for a control period in 2015 or later, in 
theorder of recordation; and
    (vi) Any CAIR SO2 allowances that were allocated toany 
entity for a control period in 2015 or later and transferred andrecorded 
in the compliance account pursuant to subpart GGG of thispart or subpart 
D of part 73 of this chapter, in the order ofrecordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR SO2source has excess 
emissions, the Administrator will deduct from thesource's compliance 
account the tonnage equivalent in CAIRSO2 allowances, 
allocated for the control period in theimmediately following calendar 
year (including any issued by apermitting authority under Sec. 96.288), 
equal to, orexceeding in accordance with paragraphs (c)(1) and (2) of 
thissection, 3 times the following amount: the number of tons of 
thesource's excess emissions minus, if the source is subject to an 
AcidRain emissions limitation, the amount of the CAIR 
SO2allowances required to be deducted under paragraph 
(b)(1)(ii) of thissection.
    (2) Any allowance deduction required under paragraph (d)(1) ofthis 
section shall not affect the liability of the owners andoperators of the 
CAIR SO2 source or the CAIRSO2 units at the source 
for any fine, penalty, orassessment, or their obligation to comply with 
any other remedy, forthe same violations, as ordered under the Clean Air 
Act or applicableState law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart III.
    (f) Administrator's action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the 
CAIR SO2 Trading Program and makeappropriate adjustments of 
the information in the submissions.
    (2) The Administrator may deduct CAIR SO2 allowancesfrom 
or transfer CAIR SO2 allowances to a source'scompliance 
account based on the information in the submissions, asadjusted under 
paragraph (f)(1) of this section, and record suchdeductions and 
transfers.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.255  Banking.

    (a) CAIR SO2 allowances may be banked for future useor 
transfer in a compliance account or a general account in accordancewith 
paragraph (b) of this section.
    (b) Any CAIR SO2 allowance that is held in acompliance 
account or a general account will remain in such accountunless and until 
the CAIR SO2 allowance is deducted ortransferred under Sec. 
96.254, Sec. 96.256, orsubpart GGG or III of this part.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr.28, 2006]

[[Page 797]]



Sec. 96.256  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR SO2Allowance 
Tracking System account. Within 10 business days of makingsuch 
correction, the Administrator will notify the CAIR authorizedaccount 
representative for the account.



Sec. 96.257  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
96.260 and 96.261 for any CAIRSO2 allowances in the account 
to one or more other CAIRSO2 Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
SO2 allowances, the Administrator may notify the 
CAIRauthorized account representative for the account that the 
accountwill be closed following 20 business days after the notice is 
sent.The account will be closed after the 20-day period unless, before 
theend of the 20-day period, the Administrator receives a 
correctlysubmitted transfer of CAIR SO2 allowances into the 
accountunder Sec. Sec. 96.260 and 96.261 or a statement submittedby the 
CAIR authorized account representative demonstrating to thesatisfaction 
of the Administrator good cause as to why the accountshould not be 
closed.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr.28, 2006]



                Subpart GGG_CAIR SO2 Allowance Transfers

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.260  Submission of CAIR SO[bdi2] allowance transfers.

    (a) A CAIR authorized account representative seeking recordationof a 
CAIR SO2 allowance transfer shall submit the transferto the 
Administrator. To be considered correctly submitted, the 
CAIRSO2 allowance transfer shall include the 
followingelements, in a format specified by the Administrator:
    (1) The account numbers of both the transferor and 
transfereeaccounts;
    (2) The serial number of each CAIR SO2 allowance thatis 
in the transferor account and is to be transferred; and
    (3) The name and signature of the CAIR authorized 
accountrepresentatives of the transferor and transferee accounts and 
thedates signed.
    (b)(1) The CAIR authorized account representative for thetransferee 
account can meet the requirements in paragraph (a)(3) ofthis section by 
submitting, in a format prescribed by theAdministrator, a statement 
signed by the CAIR authorized accountrepresentative and identifying each 
account into which any transfer ofallowances, submitted on or after the 
date on which the Administratorreceives such statement, is authorized. 
Such authorization shall bebinding on any CAIR authorized account 
representative for such accountand shall apply to all transfers into the 
account that are submittedon or after such date of receipt, unless and 
until the Administratorreceives a statement signed by the CAIR 
authorized accountrepresentative retracting the authorization for the 
account.
    (2) The statement under paragraph (b)(1) of this section 
shallinclude the following: ``By this signature I authorize anytransfer 
of allowances into each account listed herein, except that Ido not waive 
any remedies under State or Federal law to obtaincorrection of any 
erroneous transfers into such accounts. Thisauthorization shall be 
binding on any CAIR authorized accountrepresentative for such account 
unless and until a statement signed bythe CAIR authorized account 
representative retracting thisauthorization for the account is received 
by theAdministrator.''



Sec. 96.261  EPA recordation.

    (a) Within 5 business days (except as necessary to perform atransfer 
in perpetuity of CAIR SO2 allowances allocated toa CAIR 
SO2 unit or as provided in paragraph (b) of thissection) of 
receiving a CAIR SO2 allowance transfer, theAdministrator 
will record a CAIR SO2 allowance transfer bymoving each

[[Page 798]]

CAIR SO2 allowance from the transferoraccount to the 
transferee account as specified by the request,provided that:
    (1) The transfer is correctly submitted underSec. 96.260;
    (2) The transferor account includes each CAIR 
SO2allowance identified by serial number in the transfer; and
    (3) The transfer is in accordance with the limitation on 
transferunder Sec. 74.42 of this chapter and Sec. 74.47(c)of this 
chapter, as applicable.
    (b) A CAIR SO2 allowance transfer that is submittedfor 
recordation after the allowance transfer deadline for a controlperiod 
and that includes any CAIR SO2 allowances allocatedfor any 
control period before such allowance transfer deadline willnot be 
recorded until after the Administrator completes the deductionsunder 
Sec. 96.254 for the control period immediately beforesuch allowance 
transfer deadline.
    (c) Where a CAIR SO2 allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr.28, 2006]



Sec. 96.262  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR SO2 allowance transfer underSec. 
96.261, the Administrator will notify the CAIRauthorized account 
representatives of both the transferor andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR SO2 allowance transfer that fails tomeet 
the requirements of Sec. 96.261(a), the Administratorwill notify the 
CAIR authorized account representatives of bothaccounts subject to the 
transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
SO2 allowance transfer for recordation followingnotification 
of non-recordation.



                  Subpart HHH_Monitoring and Reporting

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.270  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR SO2 unit, 
shallcomply with the monitoring, recordkeeping, and reporting 
requirementsas provided in this subpart and in subparts F and G of part 
75 of thischapter. For purposes of complying with such requirements, 
thedefinitions in Sec. 96.202 and in Sec. 72.2 ofthis chapter shall 
apply, and the terms ``affected unit,''``designated representative,'' 
and ``continuousemission monitoring system'' (or ``CEMS'') in part75 of 
this chapter shall be deemed to refer to the terms ``CAIRSO2 
unit,'' ``CAIR designatedrepresentative,'' and ``continuous emission 
monitoringsystem'' (or ``CEMS'') respectively, as defined inSec. 
96.202. The owner or operator of a unit that is not aCAIR SO2 
unit but that is monitored underSec. 75.16(b)(2) of this chapter shall 
comply with the samemonitoring, recordkeeping, and reporting 
requirements as a CAIRSO2 unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR SO2 
unitshall:
    (1) Install all monitoring systems required under this subpart 
formonitoring SO2 mass emissions and individual unit 
heatinput (including all systems required to monitor 
SO2concentration, stack gas moisture content, stack gas flow 
rate,CO2 or O2 concentration, and fuel flow 
rate,as applicable, in accordance with Sec. Sec. 75.11 and75.16 of this 
chapter);
    (2) Successfully complete all certification tests required 
underSec. 96.271 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet

[[Page 799]]

themonitoring system certification and other requirements of 
paragraphs(a)(1) and (2) of this section on or before the following 
dates. Theowner or operator shall record, report, and quality-assure the 
datafrom the monitoring systems under paragraph (a)(1) of this section 
onand after the following dates.
    (1) For the owner or operator of a CAIR SO2 unit 
thatcommences commercial operation before July 1, 2008, by January 
1,2009.
    (2) For the owner or operator of a CAIR SO2 unit 
thatcommences commercial operation on or after July 1, 2008, by the 
laterof the following dates:
    (i) January 1, 2009; or
    (ii) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation.
    (3) For the owner or operator of a CAIR SO2 unit forwhich 
construction of a new stack or flue or installation of add-
onSO2 emission controls is completed after the 
applicabledeadline under paragraph (b)(1), (2), (4), or (5) of this 
section, by90 unit operating days or 180 calendar days, whichever occurs 
first,after the date on which emissions first exit to the atmosphere 
throughthe new stack or flue or add-on SO2 emissions 
controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a unit for which a CAIR opt-
inpermit application is submitted and not withdrawn and a CAIR opt-
inpermit is not yet issued or denied under subpart III of this part, 
bythe date specified in Sec. 96.284(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a CAIR SO2 opt-
inunit under subpart III of this part, by the date on which the 
CAIRSO2 opt-in unit enters the CAIR SO2 
TradingProgram as provided in Sec. 96.284(g).
    (c) Reporting data. The owner or operator of a CAIRSO2 
unit that does not meet the applicable compliance dateset forth in 
paragraph (b) of this section for any monitoring systemunder paragraph 
(a)(1) of this section shall, for each such monitoringsystem, determine, 
record, and report maximum potential (or, asappropriate, minimum 
potential) values for SO2concentration, stack gas flow rate, 
stack gas moisture content, fuelflow rate, and any other parameters 
required to determineSO2 mass emissions and heat input in 
accordance withSec. 75.31(b)(2) or (c)(3) of this chapter or section 
2.4 ofappendix D to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRSO2 
unit shall use any alternative monitoring system,alternative reference 
method, or any other alternative to anyrequirement of this subpart 
without having obtained prior writtenapproval in accordance with Sec. 
96.275.
    (2) No owner or operator of a CAIR SO2 unit shalloperate 
the unit so as to discharge, or allow to be discharged,SO2 
emissions to the atmosphere without accounting for allsuch emissions in 
accordance with the applicable provisions of thissubpart and part 75 of 
this chapter.
    (3) No owner or operator of a CAIR SO2 unit shalldisrupt 
the continuous emission monitoring system, any portionthereof, or any 
other approved emission monitoring method, and therebyavoid monitoring 
and recording SO2 mass emissionsdischarged into the 
atmosphere or heat input, except for periods ofrecertification or 
periods when calibration, quality assurancetesting, or maintenance is 
performed in accordance with the applicableprovisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR SO2 unit shallretire 
or permanently discontinue use of the continuous emissionmonitoring 
system, any component thereof, or any other approvedmonitoring system 
under this subpart, except under any one of thefollowing circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 96.205 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
permitting

[[Page 800]]

authority for use at that unit that providesemission data for the same 
pollutant or parameter as the retired ordiscontinued monitoring system; 
or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
96.271(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRSO2 unit is subject to the applicable provisions of 
part75 of this chapter concerning units in long-term cold storage.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr.28, 2006]



Sec. 96.271  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR SO2 unit shall 
beexempt from the initial certification requirements of this section 
fora monitoring system under Sec. 96.270(a)(1) if the 
followingconditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix Band appendix D to part 75 
of this chapter are fully met for thecertified monitoring system 
described in paragraph (a)(1) of thissection.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 96.270(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.
    (c) [Reserved]
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR SO2 unit shall comply with thefollowing 
initial certification and recertification procedures, for acontinuous 
monitoring system (i.e., a continuous emissionmonitoring system and an 
excepted monitoring system under appendix Dto part 75 of this chapter) 
under Sec. 96.270(a)(1). Theowner or operator of a unit that qualifies 
to use the low massemissions excepted monitoring methodology under Sec. 
75.19of this chapter or that qualifies to use an alternative 
monitoringsystem under subpart E of part 75 of this chapter shall comply 
withthe procedures in paragraph (e) or (f) of this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
96.270(a)(1) (including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 96.270(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial 
certification inaccordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in any certifiedcontinuous 
emission monitoring system under Sec. 96.270(a)(1) that may 
significantly affect the ability of the system toaccurately measure or 
record SO2 mass emissions or heatinput rate or to meet the 
quality-assurance and quality-controlrequirements of Sec. 75.21 of this 
chapter or appendix B topart 75 of this chapter, the owner or operator 
shall recertify themonitoring system in accordance with Sec. 75.20(b) 
of thischapter. Furthermore, whenever the owner or operator makes 
areplacement, modification, or change to the flue gas handling systemor 
the unit's operation that may significantly change the stack flowor 
concentration profile, the owner or operator shall recertify 
eachcontinuous emission monitoring system whose accuracy is 
potentiallyaffected by the change, in accordance with Sec. 75.20(b) 
ofthis chapter. Examples of changes to a continuous emission 
monitoringsystem that require recertification include: replacement of 
theanalyzer, complete replacement of an existing continuous 
emissionmonitoring system, or change in location or orientation of 
thesampling probe or site. Any fuel flowmeter system underSec. 
96.270(a)(1) is subject to the recertificationrequirements in Sec. 
75.20(g)(6) of this chapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and

[[Page 801]]

recertification of acontinuous monitoring system under Sec. 
96.270(a)(1). Forrecertifications, replace the words ``certification'' 
and``initial certification'' with the word``recertification'', replace 
the word``certified'' with the word ``recertified,''and follow the 
procedures in Sec. Sec. 75.20(b)(5) and (g)(7) of this chapter in lieu 
of the procedures in paragraph (d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the permitting authority, theappropriate EPA Regional 
Office, and the Administrator written noticeof the dates of 
certification testing, in accordance withSec. 96.273.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the permitting authority acertification application for 
each monitoring system. A completecertification application shall 
include the information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined inaccordance with Sec. 
75.20(a)(3) of this chapter. Aprovisionally certified monitoring system 
may be used under the CAIRSO2 Trading Program for a period 
not to exceed 120 daysafter receipt by the permitting authority of the 
completecertification application for the monitoring system under 
paragraph(d)(3)(ii) of this section. Data measured and recorded by 
theprovisionally certified monitoring system, in accordance with 
therequirements of part 75 of this chapter, will be considered 
validquality-assured data (retroactive to the date and time of 
provisionalcertification), provided that the permitting authority does 
notinvalidate the provisional certification by issuing a notice 
ofdisapproval within 120 days of the date of receipt of the 
completecertification application by the permitting authority.
    (iv) Certification application approval process. Thepermitting 
authority will issue a written notice of approval ordisapproval of the 
certification application to the owner or operatorwithin 120 days of 
receipt of the complete certification applicationunder paragraph 
(d)(3)(ii) of this section. In the event thepermitting authority does 
not issue such a notice within such 120-dayperiod, each monitoring 
system that meets the applicable performancerequirements of part 75 of 
this chapter and is included in thecertification application will be 
deemed certified for use under theCAIR SO2 Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then thepermitting authority 
will issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the permitting authority will issuea written 
notice of incompleteness that sets a reasonable date bywhich the CAIR 
designated representative must submit the additionalinformation required 
to complete the certification application. If theCAIR designated 
representative does not comply with the notice ofincompleteness by the 
specified date, then the permitting authoritymay issue a notice of 
disapproval under paragraph (d)(3)(iv)(C) ofthis section. The 120-day 
review period shall not begin before receiptof a complete certification 
application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the permittingauthority will issue a written notice 
of disapproval of thecertification application. Upon issuance of such 
notice ofdisapproval, the provisional certification is invalidated by 
thepermitting authority and the data measured and recorded by 
eachuncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of 
provisionalcertification (as defined under Sec. 75.20(a)(3) of 
thischapter). The owner or operator shall follow the procedures for 
lossof certification in paragraph

[[Page 802]]

(d)(3)(v) of this section for eachmonitoring system that is disapproved 
for initial certification.
    (D) Audit decertification. The permitting authority or, fora CAIR 
SO2 opt-in unit or a unit for which a CAIR opt-inpermit 
application is submitted and not withdrawn and a CAIR opt-inpermit is 
not yet issued or denied under subpart III of this part, 
theAdministrator may issue a notice of disapproval of the 
certificationstatus of a monitor in accordance with Sec. 96.272(b).
    (v) Procedures for loss of certification. If the permittingauthority 
or the Administrator issues a notice of disapproval of acertification 
application under paragraph (d)(3)(iv)(C) of thissection or a notice of 
disapproval of certification status underparagraph (d)(3)(iv)(D) of this 
section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified under Sec. 75.20(a)(5)(i)or 
(g)(7) of this chapter:
    (1) For a disapproved SO2 pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of SO2 and the maximumpotential flow rate, as 
defined in sections 2.1.1.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (2) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (3) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the permitting authority's or the Administrator's 
noticeof disapproval, no later than 30 unit operating days after the 
date ofissuance of the notice of disapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) exceptedmethodology under Sec. 75.19 of this 
chapter shall meet theapplicable certification and recertification 
requirements inSec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
theowner or operator of such a unit elects to certify a fuel 
flowmetersystem for heat input determination, the owner or operator 
shall alsomeet the certification and recertification requirements 
inSec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator and, if 
applicable,the permitting authority under subpart E of part 75 of this 
chaptershall comply with the applicable notification and 
applicationprocedures of Sec. 75.20(f) of this chapter.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.272  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D of 
orappendix D to part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot

[[Page 803]]

have been certified or recertified because it did not meet aparticular 
performance specification or other requirement underSec. 96.271 or the 
applicable provisions of part 75 of thischapter, both at the time of the 
initial certification orrecertification application submission and at 
the time of the audit,the permitting authority or, for a CAIR 
SO2 opt-in unit ora unit for which a CAIR opt-in permit 
application is submitted and notwithdrawn and a CAIR opt-in permit is 
not yet issued or denied undersubpart III of this part, the 
Administrator will issue a notice ofdisapproval of the certification 
status of such monitoring system. Forthe purposes of this paragraph, an 
audit shall be either a field auditor an audit of any information 
submitted to the permitting authorityor the Administrator. By issuing 
the notice of disapproval, thepermitting authority or the Administrator 
revokes prospectively thecertification status of the monitoring system. 
The data measured andrecorded by the monitoring system shall not be 
considered validquality-assured data from the date of issuance of the 
notification ofthe revoked certification status until the date and time 
that theowner or operator completes subsequently approved 
initialcertification or recertification tests for the monitoring system. 
Theowner or operator shall follow the applicable initial certification 
orrecertification procedures in Sec. 96.271 for eachdisapproved 
monitoring system.



Sec. 96.273  Notifications.

    The CAIR designated representative for a CAIR SO2 
unitshall submit written notice to the permitting authority and 
theAdministrator in accordance with Sec. 75.61 of this chapter.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]



Sec. 96.274  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements insubparts F and 
G of part 75 of this chapter, and the requirements ofSec. 96.210(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIRSO2 
unit shall comply with requirements ofSec. 75.62 of this chapter and, 
for a unit for which a CAIRopt-in permit application is submitted and 
not withdrawn and a CAIRopt-in permit is not yet issued or denied under 
subpart III of thispart, Sec. Sec. 96.283 and 96.284(a).
    (c) Certification applications. The CAIR designatedrepresentative 
shall submit an application to the permitting authoritywithin 45 days 
after completing all initial certification orrecertification tests 
required under Sec. 96.271, includingthe information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report 
theSO2 mass emissions data and heat input data for the 
CAIRSO2 unit, in an electronic quarterly report in a 
formatprescribed by the Administrator, for each calendar quarter 
beginningwith:
    (i) For a unit that commences commercial operation before July 
1,2008, the calendar quarter covering January 1, 2009 through March 
31,2009;
    (ii) For a unit that commences commercial operation on or afterJuly 
1, 2008, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 96.270(b), unless thatquarter is the third or 
fourth quarter of 2008, in which casereporting shall commence in the 
quarter covering January 1, 2009through March 31, 2009;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart III of this part, the calendar quartercorresponding to the date 
specified in Sec. 96.284(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a CAIR SO2 opt-in unit under subpart III ofthis part, the 
calendar quarter corresponding to the date on which theCAIR 
SO2 opt-in unit enters the CAIR SO2Trading Program 
as provided in Sec. 96.284(g).

[[Page 804]]

    (2) The CAIR designated representative shall submit eachquarterly 
report to the Administrator within 30 days following the endof the 
calendar quarter covered by the report. Quarterly reports shallbe 
submitted in the manner specified in Sec. 75.64 of thischapter.
    (3) For CAIR SO2 units that are also subject to anAcid 
Rain emissions limitation or the CAIR NOX AnnualTrading 
Program CAIR NOX Ozone Season Trading Program, orHg Budget 
Trading Porgram, quarterly reports shall include theapplicable data and 
information required by subparts F through I ofpart 75 of this chapter 
as applicable, in addition to theSO2 mass emission data, heat 
input data, and otherinformation required by this subpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by the Administrator) in supportof each quarterly report 
based on reasonable inquiry of those personswith primary responsibility 
for ensuring that all of the unit'semissions are correctly and fully 
monitored. The certification shallstate that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications; and
    (2) For a unit with add-on SO2 emission controls andfor 
all hours where SO2 data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
SO2 emissions.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]



Sec. 96.275  Petitions.

    (a) The CAIR designated representative of a CAIR SO2unit 
that is subject to an Acid Rain emissions limitation may submit 
apetition under Sec. 75.66 of this chapter to theAdministrator 
requesting approval to apply an alternative to anyrequirement of this 
subpart. Application of an alternative to anyrequirement of this subpart 
is in accordance with this subpart only tothe extent that the petition 
is approved in writing by theAdministrator, in consultation with the 
permitting authority.
    (b) The CAIR designated representative of a CAIR SO2unit 
that is not subject to an Acid Rain emissions limitation maysubmit a 
petition under Sec. 75.66 of this chapter to thepermitting authority 
and the Administrator requesting approval toapply an alternative to any 
requirement of this subpart. Applicationof an alternative to any 
requirement of this subpart is in accordancewith this subpart only to 
the extent that the petition is approved inwriting by both the 
permitting authority and the Administrator.



                 Subpart III_CAIR SO[bdi2] Opt-in Units

    Source: 70 FR 25362, May 12, 2005, unless otherwisenoted.



Sec. 96.280  Applicability.

    A CAIR SO2 opt-in unit must be a unit that:
    (a) Is located in the State;
    (b) Is not a CAIR SO2 unit under Sec. 96.204and is not 
covered by a retired unit exemption underSec. 96.205 that is in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect and is not anopt-in source under part 74 
of this chapter;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart 
HHHof this part.



Sec. 96.281  General.

    (a) Except as otherwise provided in Sec. Sec. 96.201through 96.204, 
Sec. Sec. 96.206 through 96.208, andsubparts BBB and CCC and subparts 
FFF through HHH of this part, a CAIRSO2 opt-in unit shall be 
treated as a CAIR SO2unit for purposes of applying such 
sections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HHH of this part to a unit for which aCAIR opt-
in permit

[[Page 805]]

application is submitted and not withdrawn anda CAIR opt-in permit is 
not yet issued or denied under this subpart,such unit shall be treated 
as a CAIR SO2 unit beforeissuance of a CAIR opt-in permit for 
such unit.



Sec. 96.282  CAIR designated representative.

    Any CAIR SO2 opt-in unit, and any unit for which aCAIR 
opt-in permit application is submitted and not withdrawn and aCAIR opt-
in permit is not yet issued or denied under this subpart,located at the 
same source as one or more CAIR SO2 unitsshall have the same 
CAIR designated representative and alternate CAIRdesignated 
representative as such CAIR SO2 units.



Sec. 96.283  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements for aCAIR 
SO2 opt-in unit in Sec. 96.280 may applyfor an initial CAIR 
opt-in permit at any time, except as providedunder Sec. 96.286(f) and 
(g), and, in order to apply, mustsubmit the following:
    (1) A complete CAIR permit application underSec. 96.222;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR SO2 unit under Sec. 96.204and is not 
covered by a retired unit exemption underSec. 96.205 that is in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Is not and, so long as the unit is a CAIR SO2opt-in 
unit, will not become, an opt-in source under part 74 of thischapter;
    (iv) Vents all of its emissions to a stack; and
    (v) Has documented heat input for more than 876 hours during the 
6months immediately preceding submission of the CAIR permit 
applicationunder Sec. 96.222;
    (3) A monitoring plan in accordance with subpart HHH of this part;
    (4) A complete certificate of representation underSec. 96.213 
consistent with Sec. 96.282, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR SO2 allowances underSec. 96.288(b) or Sec. 
96.288(c) (subject to theconditions in Sec. Sec. 96.284(h) and 
96.286(g)). Ifallocation under Sec. 96.288(c) is requested, this 
statementshall include a statement that the owners and operators of the 
unitintend to repower the unit before January 1, 2015 and that they 
willprovide, upon request, documentation demonstrating such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
SO2 opt-in unit shall submit a complete CAIRpermit 
application under Sec. 96.222 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority'sregulations for title V 
operating permits, or the permittingauthority's regulations for other 
federally enforceable permits ifapplicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR SO2 opt-in unit 
fromthe CAIR SO2 Trading Program in accordance withSec. 
96.286 or the unit becomes a CAIR SO2 unitunder Sec. 96.204, 
the CAIR SO2 opt-in unitshall remain subject to the 
requirements for a CAIR SO2opt-in unit, even if the CAIR 
designated representative for the CAIRSO2 opt-in unit fails 
to submit a CAIR permit applicationthat is required for renewal of the 
CAIR opt-in permit under paragraph(b)(1) of this section.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]



Sec. 96.284  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 96.283 is submitted in accordance with thefollowing:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit under Sec. 96.283. Amonitoring plan is sufficient, for 
purposes of interim review,

[[Page 806]]

ifthe plan appears to contain information demonstrating that 
theSO2 emissions rate and heat input of the unit and allother 
applicable parameters are monitored and reported in accordancewith 
subpart HHH of this part. A determination of sufficiency shallnot be 
construed as acceptance or approval of the monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the SO2 emissions rate and theheat input of the unit 
and all other applicable parameters, inaccordance with subpart HHH of 
this part, starting on the date ofcertification of the appropriate 
monitoring systems under subpart HHHof this part and continuing until a 
CAIR opt-in permit is denied underSec. 96.284(f) or, if a CAIR opt-in 
permit is issued, thedate and time when the unit is withdrawn from the 
CAIR SO2Trading Program in accordance with Sec. 96.286.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR SO2Trading Program 
under Sec. 96.284(g), during which periodmonitoring system availability 
must not be less than 90 percent undersubpart HHH of this part and the 
unit must be in full compliance withany applicable State or Federal 
emissions or emissions-relatedrequirements.
    (2) To the extent the SO2 emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HHH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HHH of this part and the unit is 
infull compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR SO2Trading 
Program under Sec. 96.284(g), such information shallbe used as provided 
in paragraphs (c) and (d) of this section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this sectionand the control 
periods under paragraph (b)(2) of this section.
    (d) Baseline SO2 emission rate. The unit'sbaseline 
SO2 emission rate shall equal:
    (1) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's SO2emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on SO2 emission controls during anysuch control 
periods, the average of the amounts of the unit'sSO2 
emissions rate (in lb/mmBtu) for the control periodsunder paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
SO2 emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sSO2 emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
SO2 emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline SO2 emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows

[[Page 807]]

that the unit meets the requirements for aCAIR SO2 opt-in 
unit in Sec. 96.280 and meetsthe elements certified in Sec. 
96.283(a)(2), the permittingauthority will issue a CAIR opt-in permit. 
The permitting authoritywill provide a copy of the CAIR opt-in permit to 
the Administrator,who will then establish a compliance account for the 
source thatincludes the CAIR SO2 opt-in unit unless the 
sourcealready has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in permit for the unit, thepermitting authority 
determines that the CAIR designatedrepresentative fails to show that the 
unit meets the requirements fora CAIR SO2 opt-in unit in 
Sec. 96.280 or meetsthe elements certified in Sec. 96.283(a)(2), the 
permittingauthority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR SO2 TradingProgram. A unit 
for which an initial CAIR opt-in permit is issuedby the permitting 
authority shall become a CAIR SO2 opt-inunit, and a CAIR 
SO2 unit, as of the later of January 1,2010 or January 1 of 
the first control period during which such CAIRopt-in permit is issued.
    (h) Repowered CAIR SO2 opt-in unit. (1) IfCAIR designated 
representative requests, and the permitting authorityissues a CAIR opt-
in permit providing for, allocation to a CAIRSO2 opt-in unit 
of CAIR SO2 allowances underSec. 96.288(c) and such unit is 
repowered after its date ofentry into the CAIR SO2 Trading 
Program under paragraph(g) of this section, the repowered unit shall be 
treated as a CAIRSO2 opt-in unit replacing the original 
CAIRSO2 opt-in unit, as of the date of start-up of 
therepowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline SO2 emission rate as the originalCAIR SO2 
opt-in unit, and the original CAIRSO2 opt-in unit shall no 
longer be treated as a CAIRSO2 opt-in unit or a CAIR 
SO2 unit.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.285  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 96.222;
    (2) The certification in Sec. 96.283(a)(2);
    (3) The unit's baseline heat input under Sec. 96.284(c);
    (4) The unit's baseline SO2 emission rate underSec. 
96.284(d);
    (5) A statement whether the unit is to be allocated 
CAIRSO2 allowances Sec. 96.288(b) orSec. 96.288(c) (subject 
to the conditions inSec. Sec. 96.284(h) and 96.286(g));
    (6) A statement that the unit may withdraw from the 
CAIRSO2 Trading Program only in accordance withSec. 96.286; 
and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
96.287.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 96.202 and, 
uponrecordation by the Administrator under subpart FFF or GGG of this 
partor this subpart, every allocation, transfer, or deduction of 
CAIRSO2 allowances to or from the compliance account of 
thesource that includes a CAIR SO2 opt-in unit covered by 
theCAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR SO2 opt-in unit is located and in atitle V operating 
permit or other federally enforceable permit for thesource.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]



Sec. 96.286  Withdrawal from CAIR SO[bdi2] Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRSO2 opt-in unit may withdraw from the CAIR 
SO2Trading Program, but only if the permitting authority 
issues anotification to the CAIR designated representative

[[Page 808]]

of the CAIRSO2 opt-in unit of the acceptance of the 
withdrawal of theCAIR SO2 opt-in unit in accordance with 
paragraph (d) ofthis section.
    (a) Requesting withdrawal. In order to withdraw a CAIRSO2 
opt-in unit from the CAIR SO2 TradingProgram, the CAIR 
designated representative of the CAIRSO2 opt-in unit shall 
submit to the permitting authority arequest to withdraw effective as of 
midnight of December 31 of aspecified calendar year, which date must be 
at least 4 years afterDecember 31 of the year of entry into the CAIR 
SO2 TradingProgram under Sec. 96.284(g). The request must be 
submittedno later than 90 days before the requested effective date 
ofwithdrawal.
    (b) Conditions for withdrawal. Before a CAIR SO2opt-in 
unit covered by a request under paragraph (a) of this sectionmay 
withdraw from the CAIR SO2 Trading Program and theCAIR opt-in 
permit may be terminated under paragraph (e) of thissection, the 
following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRSO2 opt-
in unit must meet the requirement to hold CAIRSO2 allowances 
under Sec. 96.206(c) and cannothave any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR SO2 
opt-inunit CAIR SO2 allowances equal in amount to and 
allocatedfor the same or a prior control period as any CAIR 
SO2allowances allocated to the CAIR SO2 opt-in 
unit underSec. 96.288 for any control period for which the withdrawalis 
to be effective. If there are no remaining CAIR SO2units at 
the source, the Administrator will close the complianceaccount, and the 
owners and operators of the CAIR SO2 opt-in unit may submit a 
CAIR SO2 allowance transfer for anyremaining CAIR 
SO2 allowances to another CAIRSO2 Allowance 
Tracking System in accordance with subpartGGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR SO2 allowancesrequired), the 
permitting authority will issue a notification to theCAIR designated 
representative of the CAIR SO2 opt-in unitof the acceptance 
of the withdrawal of the CAIR SO2 opt-inunit as of midnight 
on December 31 of the calendar year for which thewithdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRSO2 opt-in unit that the CAIR SO2 opt-inunit's 
request to withdraw is denied. Such CAIR SO2 opt-inunit shall 
continue to be a CAIR SO2 opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR SO2 opt-inunit to terminate the 
CAIR opt-in permit for such unit as of theeffective date specified under 
paragraph (c)(1) of this section. Theunit shall continue to be a CAIR 
SO2 opt-in unit until theeffective date of the termination 
and shall comply with allrequirements under the CAIR SO2 
Trading Program concerningany control periods for which the unit is a 
CAIR SO2 opt-in unit, even if such requirements arise or must 
be complied withafter the withdrawal takes effect.
    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRSO2 opt-in unit's 
request to withdraw, the CAIR designatedrepresentative may submit 
another request to withdraw in accordancewith paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR SO2Trading Program. 
Once a CAIR SO2 opt-in unitwithdraws from the CAIR 
SO2 Trading Program and its CAIRopt-in permit is terminated 
under this section, the CAIR designatedrepresentative may not submit 
another application for a CAIR opt-inpermit under Sec. 96.283 for such 
CAIR SO2 opt-in unit before the date that is 4 years after 
the date on which thewithdrawal became effective. Such new application 
for a CAIR opt-inpermit will be treated as

[[Page 809]]

an initial application for a CAIR opt-in permit under Sec. 96.284.
    (g) Inability to withdraw. Notwithstanding paragraphs (a)through (f) 
of this section, a CAIR SO2 opt-in unit shallnot be eligible 
to withdraw from the CAIR SO2 TradingProgram if the CAIR 
designated representative of the CAIRSO2 opt-in unit 
requests, and the permitting authorityissues a CAIR opt-in permit 
providing for, allocation to the CAIRSO2 opt-in unit of CAIR 
SO2 allowances underSec. 96.288(c).

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]



Sec. 96.287  Change in regulatory status.

    (a) Notification. If a CAIR SO2 opt-in unitbecomes a CAIR 
SO2 unit under Sec. 96.204, thenthe CAIR designated 
representative shall notify in writing thepermitting authority and the 
Administrator of such change in the CAIRSO2 opt-in unit's 
regulatory status, within 30 days ofsuch change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
SO2 opt-in unit becomes a CAIR SO2unit under Sec. 
96.204, the permitting authority will revisethe CAIR SO2 opt-
in unit's CAIR opt-in permit to meet therequirements of a CAIR permit 
under Sec. 96.223, and removethe CAIR opt-in permit provisions, as of 
the date on which the CAIRSO2 opt-in unit becomes a CAIR 
SO2 unit underSec. 96.204.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes a CAIR SO2 opt-in unit thatbecomes a 
CAIR SO2 unit under Sec. 96.204, CAIRSO2 
allowances equal in amount to and allocated for thesame or a prior 
control period as:
    (A) Any CAIR SO2 allowances allocated to the 
CAIRSO2 opt-in unit under Sec. 96.288 for anycontrol period 
after the date on which the CAIR SO2 opt-inunit becomes a 
CAIR SO2 unit under Sec. 96.204;and
    (B) If the date on which the CAIR SO2 opt-in unitbecomes 
a CAIR SO2 unit under Sec. 96.204 is notDecember 31, the 
CAIR SO2 allowances allocated to the CAIRSO2 opt-
in unit under Sec. 96.288 for thecontrol period that includes the date 
on which the CAIRSO2 opt-in unit becomes a CAIR 
SO2 unit underSec. 96.204, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRSO2 opt-in unit becomes a CAIR SO2 unit 
underSec. 96.204 divided by the total number of days in thecontrol 
period and rounded to the nearest whole allowance asappropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRSO2 
opt-in unit that becomes a CAIR SO2 unitunder Sec. 96.204 
contains the CAIR SO2allowances necessary for completion of 
the deduction under paragraph(b)(2)(i) of this section.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.288  CAIR SO[bdi2] allowance allocations to CAIR SO[bdi2] opt-inunits.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 96.284(e), the permitting authority willallocate CAIR 
SO2 allowances to the CAIR SO2opt-in unit, and 
submit to the Administrator the allocation for thecontrol period in 
which a CAIR SO2 opt-in unit enters theCAIR SO2 
Trading Program under Sec. 96.284(g),in accordance with paragraph (b) 
or (c) of this section.
    (2) By no later than October 31 of the control period after 
thecontrol period in which a CAIR SO2 opt-in unit enters 
theCAIR SO2 Trading Program under Sec. 96.284(g)and October 
31 of each year thereafter, the permitting authority willallocate CAIR 
SO2 allowances to the CAIR SO2opt-in unit, and 
submit to the Administrator the allocation for thecontrol period that 
includes such submission deadline and in which theunit is a CAIR 
SO2 opt-in unit, in accordance withparagraph (b) or (c) of 
this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR SO2 opt-in unit is to be allocated CAIRSO2 
allowances, the permitting authority will allocate inaccordance with the 
following procedures:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRSO2 allowance allocation will be the lesser of:
    (i) The CAIR SO2 opt-in unit's baseline heat 
inputdetermined under Sec. 96.284(c); or
    (ii) The CAIR SO2 opt-in unit's heat input, asdetermined 
in accordance

[[Page 810]]

with subpart HHH of this part, for theimmediately prior control period, 
except when the allocation is beingcalculated for the control period in 
which the CAIR SO2opt-in unit enters the CAIR SO2 
Trading Program underSec. 96.284(g).
    (2) The SO2 emission rate (in lb/mmBtu) used 
forcalculating CAIR SO2 allowance allocations will be 
thelesser of:
    (i) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 96.284(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period for which CAIR 
SO2allowances are to be allocated.
    (3) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (b)(1) of this section, multiplied 
by theSO2 emission rate under paragraph (b)(2) of this 
section,and divided by 2,000 lb/ton.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit (based on a demonstration of the 
intent torepower stated under Sec. 96.283(a)(5)) providing 
for,allocation to a CAIR SO2 opt-in unit of 
CAIRSO2 allowances under this paragraph (subject to 
theconditions in Sec. Sec. 96.284(h) and 96.286(g)), thepermitting 
authority will allocate to the CAIR SO2 opt-inunit as 
follows:
    (1) For each control period in 2010 through 2014 for which theCAIR 
SO2 opt-in unit is to be allocated CAIRSO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRSO2 allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used 
forcalculating CAIR SO2 allowance allocations will be 
thelesser of:
    (A) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 96.284(d); or
    (B) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period in which the CAIR SO2 opt-
in unit enters the CAIR SO2 Trading Program underSec. 
96.284(g).
    (iii) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (c)(1)(i) of this section, 
multiplied bythe SO2 emission rate under paragraph (c)(1)(ii) 
of thissection, and divided by 2,000 lb/ton.
    (2) For each control period in 2015 and thereafter for which theCAIR 
SO2 opt-in unit is to be allocated CAIRSO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRSO2 allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used 
forcalculating the CAIR SO2 allowance allocation will be 
thelesser of:
    (A) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 96.284(d) multiplied 
by 10 percent; or
    (B) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period for which CAIR 
SO2allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (c)(2)(i) of this section, 
multiplied bythe SO2 emission rate under paragraph (c)(2)(ii) 
of thissection, and divided by 2,000 lb/ton.
    (d) Recordation. (1) The Administrator will record, in thecompliance 
account of the source that includes the CAIRSO2 opt-in unit, 
the CAIR SO2 allowancesallocated by the permitting authority 
to the CAIR SO2 opt-in unit under paragraph (a)(1) of this 
section.
    (2) By December 1 of the control period in which a 
CAIRSO2 opt-in unit enters the CAIR SO2 
TradingProgram under Sec. 96.284(g), and December 1 of

[[Page 811]]

eachyear thereafter, the Administrator will record, in the 
complianceaccount of the source that includes the CAIR SO2 
opt-inunit, the CAIR SO2 allowances allocated by the 
permittingauthority to the CAIR SO2 opt-in unit under 
paragraph (a)(2) of this section.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006]

Subparts JJJ--ZZZ [Reserved]



  Subpart AAAA_CAIR NOX Ozone Season TradingProgram General Provisions

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.301  Purpose.

    This subpart and subparts BBBB through IIII establish the modelrule 
comprising general provisions and the designated 
representative,permitting, allowance, monitoring, and opt-in provisions 
for the StateClean Air Interstate Rule (CAIR) NOX Ozone 
Season TradingProgram, under section 110 of the Clean Air Act andSec. 
51.123 of this chapter, as a means of mitigatinginterstate transport of 
ozone and nitrogen oxides. The owner oroperator of a unit or a source 
shall comply with the requirements ofthis subpart and subparts BBBB 
through IIII as a matter of federal lawonly if the State with 
jurisdiction over the unit and the sourceincorporates by reference such 
subparts or otherwise adopts therequirements of such subparts in 
accordance withSec. 51.123(aa)(1) or (2), of this chapter, the 
Statesubmits to the Administrator one or more revisions of the 
Stateimplementation plan that include such adoption, and the 
Administratorapproves such revisions. If the State adopts the 
requirements of suchsubparts in accordance with Sec. 51.123(aa)(1) or 
(2), (bb),or (dd) of this chapter, then the State authorizes the 
Administratorto assist the State in implementing the CAIR NOX 
OzoneSeason Trading Program by carrying out the functions set forth for 
theAdministrator in such subparts.



Sec. 96.302  Definitions.

    The terms used in this subpart and subparts BBBB through IIIIshall 
have the meanings set forth in this section as follows:
    Account number means the identification number given by 
theAdministrator to each CAIR NOX Ozone Season 
AllowanceTracking System account.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides air pollution control and emission reduction programestablished 
by the Administrator under title IV of the CAA and parts72 through 78 of 
this chapter.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRNOX 
Ozone Season allowances, the determination by apermitting authority or 
the Administrator of the amount of such CAIRNOX Ozone Season 
allowances to be initially credited to aCAIR NOX Ozone Season 
unit, a new unit set-aside, or otherentity.
    Allowance transfer deadline means, for a control period,midnight of 
November 30 (if it is a business day), or midnight of thefirst business 
day thereafter (if November 30 is not a business day),immediately 
following the control period and is the deadline by whicha CAIR 
NOX Ozone Season allowance transfer must besubmitted for 
recordation in a CAIR NOX Ozone Seasonsource's compliance 
account in order to be used to meet the source'sCAIR NOX 
Ozone Season emissions limitation for suchcontrol period in accordance 
with Sec. 96.354.
    Alternate CAIR designated representative means, for a 
CAIRNOX Ozone Season source and each CAIR NOXOzone 
Season unit at the source, the natural person who is authorizedby the 
owners and operators of the source and all such units at thesource, in 
accordance with subparts BBBB and IIII of this part, to acton behalf of 
the CAIR designated representative in matters pertainingto the CAIR 
NOX Ozone Season Trading Program. If the CAIRNOX

[[Page 812]]

Ozone Season source is also a CAIRNOX source, then this 
natural person shall be the sameperson as the alternate CAIR designated 
representative under the CAIRNOX Annual Trading Program. If 
the CAIR NOXOzone Season source is also a CAIR SO2 
source, then thisnatural person shall be the same person as the 
alternate CAIRdesignated representative under the CAIR SO2 
TradingProgram. If the CAIR NOX Ozone Season source is 
alsosubject to the Acid Rain Program, then this natural person shall 
bethe same person as the alternate designated representative under 
theAcid Rain Program. If the CAIR NOX Ozone Season source 
isalso subject to the Hg Budget Trading Program, then this naturalperson 
shall be the same person as the alternate Hg designatedrepresentative 
under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions monitoring system approved for use under subpart HHHHof this 
part, designed to interpret and convert individual outputsignals from 
pollutant concentration monitors, flow monitors, diluentgas monitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HHHH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial thinnings, slash, brush, or byproduct from 
conversion oftrees to merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil- or other-fuel-firedcombustion 
device used to produce heat and to transfer heat torecirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BBBB, FFFF, and IIII of this part, totransfer 
and otherwise dispose of CAIR NOX Ozone Seasonallowances held 
in the general account and, with regard to acompliance account, the CAIR 
designated representative of the source.
    CAIR designated representative means, for a CAIRNOX Ozone 
Season source and each CAIR NOXOzone Season unit at the 
source, the natural person who is authorizedby the owners and operators 
of the source and all such units at thesource, in accordance with 
subparts BBBB and IIII of this part, torepresent and legally bind each 
owner and operator in matterspertaining to the CAIR NOX Ozone 
Season Trading Program.If the CAIR NOX Ozone Season source is 
also a CAIRNOX source, then this natural person shall be the 
sameperson as the CAIR designated representative under the 
CAIRNOX Annual Trading Program. If the CAIR 
NOXOzone Season source is also a CAIR SO2 source, 
then thisnatural person shall be the same person as the CAIR 
designatedrepresentative under the CAIR SO2 Trading Program. 
If theCAIR NOX Ozone Season source is also subject to the 
AcidRain Program, then this natural person shall be the same person as 
thedesignated representative under the Acid Rain Program. If the 
CAIRNOX Ozone Season source is also subject to the Hg 
BudgetTrading Program, then this natural person shall be the same person 
asthe Hg designated representative under the Hg Budget Trading Program.

[[Page 813]]

    CAIR NOX Annual Trading Program meansa multi-state nitrogen oxides 
air pollution control and emissionreduction program approved and 
administered by the Administrator inaccordance with subparts AA through 
II of this part andSec. 51.123(o)(1) or (2) of this chapter or 
established bythe Administrator in accordance with subparts AA through 
II of part 97of this chapter and Sec. Sec. 51.123(p) and 52.35 of 
thischapter, as a means of mitigating interstate transport of 
fineparticulates and nitrogen oxides.
    CAIR NOX Ozone Season allowance means alimited authorization issued 
by a permitting authority or theAdministrator under provisions of a 
State implementation plan that areapproved under Sec. 51.123(aa)(1) or 
(2) (and (bb)(1)), (bb)(2), (dd), or (ee) of this chapter, or under 
subpart EEEE of part 97or Sec. 97.388 of this chapter, to emit one ton 
of nitrogenoxides during a control period of the specified calendar year 
forwhich the authorization is allocated or of any calendar 
yearthereafter under the CAIR NOX Ozone Season Trading 
Programor a limited authorization issued by a permitting authority for 
acontrol period during 2003 through 2008 under the NOXBudget 
Trading Program in accordance with Sec. 51.121(p) ofthis chapter to 
emit one ton of nitrogen oxides during a controlperiod, provided that 
the provision in Sec. 51.121(b)(2)(ii)(E) of this chapter shall not be 
used in applying this definition andthe limited authorization shall not 
have been used to meet theallowance-holding requirement under the 
NOX Budget TradingProgram. An authorization to emit nitrogen 
oxides that is not issuedunder provisions of a State implementation plan 
approved underSec. 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), 
or(ee) of this chapter or subpart EEEE of part 97 orSec. 97.388 of this 
chapter or under the NOXBudget Trading Program as described 
in the prior sentence shall not bea CAIR NOX Ozone Season 
allowance.
    CAIR NOX Ozone Season allowance deductionor deduct CAIR NOX Ozone 
Season allowancesmeans the permanent withdrawal of CAIR NOX 
Ozone Seasonallowances by the Administrator from a compliance account, 
e.g.,in order to account for a specified number of tons of total 
nitrogenoxides emissions from all CAIR NOX Ozone Season units 
at aCAIR NOX Ozone Season source for a control 
period,determined in accordance with subpart HHHH of this part, or to 
accountfor excess emissions.
    CAIR NOX Ozone Season Allowance TrackingSystem means the system by 
which the Administrator recordsallocations, deductions, and transfers of 
CAIR NOX OzoneSeason allowances under the CAIR NOX 
Ozone Season TradingProgram. Such allowances will be allocated, held, 
deducted, ortransferred only as whole allowances.
    CAIR NOX Ozone Season Allowance TrackingSystem account means an 
account in the CAIR NOX OzoneSeason Allowance Tracking System 
established by the Administrator forpurposes of recording the 
allocation, holding, transferring, ordeducting of CAIR NOX 
Ozone Season allowances.
    CAIR NOX Ozone Season allowances held orhold CAIR NOX Ozone Season 
allowances meansthe CAIR NOX Ozone Season allowances recorded 
by theAdministrator, or submitted to the Administrator for recordation, 
inaccordance with subparts FFFF, GGGG, and IIII of this part, in a 
CAIRNOX Ozone Season Allowance Tracking System account.
    CAIR NOX Ozone Season emissions limitationmeans, for a CAIR 
NOX Ozone Season source, the tonnageequivalent, in 
NOX emissions in a control period, of theCAIR NOX 
Ozone Season allowances available for deductionfor the source under 
Sec. 96.354(a) and (b) for the controlperiod.
    CAIR NOX Ozone Season Trading Programmeans a multi-state nitrogen 
oxides air pollution control and emissionreduction program approved and 
administered by the Administrator inaccordance with subparts AAAA 
through IIII of this part andSec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), or (dd) ofthis chapter or established by the Administrator in 
accordance withsubparts AAAA through IIII of part 97 of this chapter 
andSec. Sec. 51.123(ee) and 52.35 of this chapter, as a meansof 
mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX Ozone Season source means asource that includes one or more 
CAIR NOX Ozone Seasonunits.

[[Page 814]]

    CAIR NOX Ozone Season unit means aunit that is subject to the CAIR 
NOX Ozone Season TradingProgram under Sec. 96.304 and, 
except for purposes ofSec. 96.305 and subpart EEEE of this part, a 
CAIRNOX Ozone Season opt-in unit under subpart IIII of 
thispart.
    CAIR NOX source means a source that issubject to the CAIR 
NOX Annual Trading Program.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CCCC of this part, includingany permit 
revisions, specifying the CAIR NOX Ozone SeasonTrading 
Program requirements applicable to a CAIR NOXOzone Season 
source, to each CAIR NOX Ozone Season unit atthe source, and 
to the owners and operators and the CAIR designatedrepresentative of the 
source and each such unit.
    CAIR SO2 source means a source that issubject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reductionprogram approved and 
administered by the Administrator in accordancewith subparts AAA through 
III of this part andSec. 51.124(o)(1) or (2) of this chapter or 
established bythe Administrator in accordance with subparts AAA through 
III of part97 of this chapter and Sec. Sec. 51.124(r) and 52.36 ofthis 
chapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous state) produced by the mechanical, thermal, orchemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EEEE of this part, combustingany 
amount of coal or coal-derived fuel, alone or in combination withany 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EEEE of this part, combusting anyamount 
of coal or coal-derived fuel, alone or in combination with anyamount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit,
    (A) Useful thermal energy not less than 5 percent of total 
energyoutput; and
    (B) Useful power that, when added to one-half of useful 
thermalenergy produced, is not less then 42.5 percent of total energy 
input,if useful thermal energy produced is 15 percent or more of 
totalenergy output, or not less than 45 percent of total energy input, 
ifuseful thermal energy produced is less than 15 percent of total 
energyoutput.
    (ii) For a bottoming-cycle cogeneration unit, useful power notless 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and 
aturbine and in which the flue gas resulting from the combustion offuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to

[[Page 815]]

generate electricity for sale or use, including testgeneration, except 
as provided in Sec. 96.305 andSec. 96.384(h).
    (i) For a unit that is a CAIR NOX Ozone Season unitunder 
Sec. 96.304 on the later of November 15, 1990 or thedate the unit 
commences commercial operation as defined in paragraph(1) of this 
definition and that subsequently undergoes a physicalchange (other than 
replacement of the unit by a unit at the samesource), such date shall 
remain the date of commencement of commercialoperation of the unit, 
which shall continue to be treated as the sameunit.
    (ii) For a unit that is a CAIR NOX Ozone Season unitunder 
Sec. 96.304 on the later of November 15, 1990 or thedate the unit 
commences commercial operation as defined in paragraph(1) of this 
definition and that is subsequently replaced by a unit atthe same source 
(e.g., repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1) or (2) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 96.305, for a unit that is not a CAIRNOX 
Ozone Season unit under Sec. 96.304 on thelater of November 15, 1990 or 
the date the unit commences commercialoperation as defined in paragraph 
(1) of this definition, the unit'sdate for commencement of commercial 
operation shall be the date onwhich the unit becomes a CAIR 
NOX Ozone Season unit underSec. 96.304.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement of commercial operation, 
and the replacement unit shallbe treated as a separate unit with a 
separate date for commencement ofcommercial operation as defined in 
paragraph (1) or (2) of thisdefinition as appropriate.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 96.384(h).
    (2) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (3) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date shall remainthe replaced 
unit's date of commencement of operation, and thereplacement unit shall 
be treated as a separate unit with a separatedate for commencement of 
operation as defined in paragraph (1), (2),or (3) of this definition as 
appropriate, except as provided inSec. 96.384(h).
    Common stack means a single flue through which emissionsfrom 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX Ozone SeasonAllowance 
Tracking System account, established by the Administratorfor a CAIR 
NOX Ozone Season source under subpart FFFF orIIII of this 
part, in which any CAIR NOX Ozone Seasonallowance allocations 
for the CAIR NOX Ozone Season unitsat the source are 
initially recorded and in which are held any CAIRNOX Ozone 
Season allowances available for use for acontrol period in order to meet 
the source's CAIR NOXOzone Season emissions limitation in 
accordance withSec. 96.354.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HHHH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at least

[[Page 816]]

once every 15 minutes (using an automated data acquisition andhandling 
system (DAHS)), a permanent record of nitrogen oxidesemissions, stack 
gas volumetric flow rate, stack gas moisture content,and oxygen or 
carbon dioxide concentration (as applicable), in amanner consistent with 
part 75 of this chapter. The following systemsare the principal types of 
continuous emission monitoring systemsrequired under subpart HHHH of 
this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consistingof 
a NOX pollutant concentration monitor and an automateddata 
acquisition and handling system and providing a permanent,continuous 
record of NOX emissions, in parts per million(ppm);
    (3) A nitrogen oxides emission rate (or NOX-
diluent)monitoring system, consisting of a NOX 
pollutantconcentration monitor, a diluent gas (CO2 
orO2) monitor, and an automated data acquisition andhandling 
system and providing a permanent, continuous record ofNOX 
concentration, in parts per million (ppm), diluent gasconcentration, in 
percent CO2 or O2, andNOX emission 
rate, in pounds per million British thermalunits (lb/mmBtu);
    (4) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (5) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous 
record ofCO2 emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2in percent O2.
    Control period or ozone season means the periodbeginning May 1 of a 
calendar year, except as provided inSec. 96.306(c)(2), and ending on 
September 30 of the sameyear, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the CAIR designated representative and as determinedby the 
Administrator in accordance with subpart HHHH of this part.
    Excess emissions means any ton of nitrogen oxides emitted bythe CAIR 
NOX Ozone Season units at a CAIR NOXOzone Season 
source during a control period that exceeds the CAIRNOX Ozone 
Season emissions limitation for the source.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including dieselfuel or 
petroleum derivatives such as oil tar) and any recycled orblended 
petroleum products or petroleum by-products used as a fuelwhether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Ozone SeasonAllowance 
Tracking System account, established under subpart FFFF ofthis part, 
that is not a compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogenerationunit, 
electricity made available for use, including any suchelectricity used 
in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,

[[Page 817]]

recorded, and reported to the Administrator by the CAIRdesignated 
representative and determined by the Administrator inaccordance with 
subpart HHHH of this part and excluding the heatderived from preheated 
combustion air, recirculated flue gases, orexhaust from other sources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in Btu/hr) that a unit is capable of combusting on a steadystate basis 
as of the initial installation of the unit as specified bythe 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HHHH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissionslimitation 
means, with regard to a unit, the lowest NOXemissions 
limitation (in terms of lb/mmBtu) that is applicable to theunit under 
State or Federal law, regardless of the averaging period towhich the 
emissions limitation applies.
    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe) that thegenerator is capable of producing on a steady 
state basis and duringcontinuous operation (when not restricted by 
seasonal or otherderatings), such increased maximum amount as of such 
completion asspecified by the person conducting the physical change.
    Oil-fired means, for purposes of subpart EEEE of this 
part,combusting fuel oil for more than 15.0 percent of the annual 
heatinput in a specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, orsupervises a 
CAIR NOX Ozone Season unit or a CAIRNOX Ozone 
Season source and shall include, but not belimited to, any holding 
company, utility system, or plant manager ofsuch a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR NOX Ozone Season source or 
aCAIR NOX Ozone Season unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR NOX Ozone Season unit at the source or the 
CAIRNOX Ozone Season unit;
    (ii) Any holder of a leasehold interest in a CAIR 
NOXOzone Season unit at the source or the CAIR NOX 
OzoneSeason unit; or
    (iii) Any purchaser of power from a CAIR NOX OzoneSeason 
unit at the source or the CAIR NOX Ozone Seasonunit under a 
life-of-the-unit, firm power contractual arrangement;provided that, 
unless expressly provided for in a leasehold agreement,owner shall not 
include a passive lessor, or a person who has anequitable interest

[[Page 818]]

through such lessor, whose rental payments arenot based (either directly 
or indirectly) on the revenues or incomefrom such CAIR NOX 
Ozone Season unit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR NOX OzoneSeason 
allowances held in the general account and who is subject tothe binding 
agreement for the CAIR authorized account representativeto represent the 
person's ownership interest with respect to CAIRNOX Ozone 
Season allowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR NOX Ozone Season Trading Programor, if no such agency 
has been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence, by 
the permitting authority or the Administrator inthe regular course of 
business.
    Recordation, record, or recorded means, with regard toCAIR 
NOX Ozone Season allowances, the movement of 
CAIRNOX Ozone Season allowances by the Administrator into 
orbetween CAIR NOX Ozone Season Allowance Tracking 
Systemaccounts, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, withregard to a unit, the 
demolishing of a unit, or the permanent shutdownand permanent disabling 
of a unit, and the construction of anotherunit (the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance of technology in widespread commercial use as of 
January1, 2005.
    Serial number means, for a CAIR NOX Ozone 
Seasonallowance, the unique identification number assigned to each 
CAIRNOX Ozone Season allowance by the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''

[[Page 819]]

    State means one of the States or the District ofColumbia that adopts 
the CAIR NOX Ozone Season TradingProgram pursuant to Sec. 
51.123(aa)(1) or (2), (bb), or (dd)of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR NOX Ozone Season emissionslimitation, total 
tons of nitrogen oxides emissions for a controlperiod shall be 
calculated as the sum of all recorded hourly emissions(or the mass 
equivalent of the recorded hourly emission rates) inaccordance with 
subpart HHHH of this part, but with any remainingfraction of a ton equal 
to or greater than 0.50 tons deemed to equalone ton and any remaining 
fraction of a ton less than 0.50 tons deemedto equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:

LHV = HHV-10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.

    Total energy output means, with regard to a cogenerationunit, the 
sum of useful power and useful thermal energy produced bythe 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogenerationunit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating or 
domestichot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy usedby 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25390, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006; 72 FR 59206, Oct. 19, 2007]



Sec. 96.303  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BBBB through IIII are defined as follows:


[[Page 820]]


Btu--British thermal unit
CO2--carbon dioxide
H2O--water
Hg--mercury
hr--hour
kW--kilowatt electrical
kWh--kilowatt hour
lb--pound
mmBtu--million Btu
MWe--megawatt electrical
MWh--megawatt hour
NOX--nitrogen oxides
O2--oxygen
ppm--parts per million
scfh--standard cubic feet per hour
SO2--sulfur dioxide
yr--year

[71 FR 25392, Apr. 28, 2006]



Sec. 96.304  Applicability.

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR NOXOzone 
Season units, and any source that includes one or more suchunits shall 
be a CAIR NOX Ozone Season source, subject tothe requirements 
of this subpart and subparts BBBB through HHHH ofthis part: any 
stationary, fossil-fuel-fired boiler or stationary,fossil-fuel-fired 
combustion turbine serving at any time, since thelater of November 15, 
1990 or the start-up of the unit's combustionchamber, a generator with 
nameplate capacity of more than 25 MWeproducing electricity for sale.
    (2) If a stationary boiler or stationary combustion turbine 
that,under paragraph (a)(1) of this section, is not a CAIR 
NOXOzone Season unit begins to combust fossil fuel or to 
serve agenerator with nameplate capacity of more than 25 MWe 
producingelectricity for sale, the unit shall become a CAIR 
NOXOzone Season unit as provided in paragraph (a)(1) of this 
section onthe first date on which it both combusts fossil fuel and 
serves suchgenerator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR NOX Ozone Season units:
    (1)(i) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of the unit's potential electric output capacityor 219,000 
MWh, whichever is greater, to any utility powerdistribution system for 
sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR NOX OzoneSeason unit starting on 
the earlier of January 1 after the firstcalendar year during which the 
unit first no longer qualifies as acogeneration unit or January 1 after 
the first calendar year duringwhich the unit no longer meets the 
requirements of paragraph (b)(1)(i)(B) of this section.
    (2)(i) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section commencing operationbefore 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section commencing operation onor after 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the

[[Page 821]]

requirements of paragraph (b)(2)(i) or (ii) of thissection for at least 
3 consecutive calendar years, but subsequently nolonger meets all such 
requirements, the unit shall become a CAIRNOX Ozone Season 
unit starting on the earlier of January 1after the first calendar year 
during which the unit first no longerqualifies as a solid waste 
incineration unit or January 1 after thefirst 3 consecutive calendar 
years after 1990 for which the unit hasan average annual fuel 
consumption of fossil fuel of 20 percent ormore.

[71 FR 25392, Apr. 28, 2006 as amended at 71 FR 74794, Dec.13, 2006]



Sec. 96.305  Retired unit exemption.

    (a)(1) Any CAIR NOX Ozone Season unit that ispermanently 
retired and is not a CAIR NOX Ozone Seasonopt-in unit under 
subpart IIII of this part shall be exempt from theCAIR NOX 
Ozone Season Trading Program, except for theprovisions of this section, 
Sec. 96.302,Sec. 96.303, Sec. 96.304, Sec. 96.306(c)(4) through (7), 
Sec. 96.307, Sec. 96.308, andsubparts BBBB and EEEE through GGGG of 
this part.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR NOX OzoneSeason unit is 
permanently retired. Within 30 days of the unit'spermanent retirement, 
the CAIR designated representative shall submita statement to the 
permitting authority otherwise responsible foradministering any CAIR 
permit for the unit and shall submit a copy ofthe statement to the 
Administrator. The statement shall state, in aformat prescribed by the 
permitting authority, that the unit waspermanently retired on a specific 
date and will comply with therequirements of paragraph (b) of this 
section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCCCC of this part covering the source at which the unit is 
located toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any nitrogen oxides, starting onthe date that the 
exemption takes effect.
    (2) The permitting authority will allocate CAIR NOXOzone 
Season allowances under subpart EEEE of this part to a unitexempt under 
paragraph (a) of this section.
    (3) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain, at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records may be extended for cause, at any time before 
theend of the period, in writing by the permitting authority or 
theAdministrator. The owners and operators bear the burden of proof 
thatthe unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRNOX 
Ozone Season Trading Program concerning all periodsfor which the 
exemption is not in effect, even if such requirementsarise, or must be 
complied with, after the exemption takes effect.
    (5) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 96.322for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2009 or thedate on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(5) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(5) of this section to submit a CAIRpermit 
application for the unit; or

[[Page 822]]

    (iii) The date on which the unit resumes operation, if theCAIR 
designated representative is not required to submit a CAIR 
permitapplication for the unit.
    (7) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HHHH of this part, a 
unitthat loses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25393, Apr.28, 2006]



Sec. 96.306  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR NOX Ozone Season sourcerequired to have a title V 
operating permit and each CAIRNOX Ozone Season unit required 
to have a title V operatingpermit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 96.322 in accordance with thedeadlines 
specified in Sec. 96.321; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX OzoneSeason 
source required to have a title V operating permit and eachCAIR 
NOX Ozone Season unit required to have a title Voperating 
permit at the source shall have a CAIR permit issued by thepermitting 
authority under subpart CCCC of this part for the sourceand operate the 
source and the unit in compliance with such CAIRpermit.
    (3) Except as provided in subpart IIII of this part, the ownersand 
operators of a CAIR NOX Ozone Season source that isnot 
otherwise required to have a title V operating permit and eachCAIR 
NOX Ozone Season unit that is not otherwise requiredto have a 
title V operating permit are not required to submit a CAIRpermit 
application, and to have a CAIR permit, under subpart CCCC ofthis part 
for such CAIR NOX Ozone Season source and suchCAIR 
NOX Ozone Season unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR NOX Ozone Season source and each CAIRNOX 
Ozone Season unit at the source shall comply with themonitoring, 
reporting, and recordkeeping requirements of subpart HHHHof this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HHHH of this part shall be used to determine 
complianceby each CAIR NOX Ozone Season source with the 
CAIRNOX Ozone Season emissions limitation under paragraph 
(c)of this section.
    (c) Nitrogen oxides ozone season emission requirements. (1)As of the 
allowance transfer deadline for a control period, the ownersand 
operators of each CAIR NOX Ozone Season source andeach CAIR 
NOX Ozone Season unit at the source shall hold,in the 
source's compliance account, CAIR NOX Ozone Seasonallowances 
available for compliance deductions for the control periodunder Sec. 
96.354(a) in an amount not less than the tons oftotal nitrogen oxides 
emissions for the control period from all CAIRNOX Ozone 
Season units at the source, as determined inaccordance with subpart HHHH 
of this part.
    (2) A CAIR NOX Ozone Season unit shall be subject tothe 
requirements under paragraph (c)(1) of this section for thecontrol 
period starting on the later of May 1, 2009 or the deadlinefor meeting 
the unit's monitor certification requirements underSec. 96.370(b)(1), 
(2), (3), or (7) and for each controlperiod thereafter.
    (3) A CAIR NOX Ozone Season allowance shall not 
bededucted, for compliance with the requirements under paragraph 
(c)(1)of this section, for a control period in a calendar year before 
theyear for which the CAIR NOX Ozone Season allowance 
wasallocated.
    (4) CAIR NOX Ozone Season allowances shall be held 
in,deducted from, or transferred into or among CAIR NOX 
OzoneSeason Allowance Tracking System accounts in accordance with 
subpartsFFFF, GGGG, and IIII of this part.
    (5) A CAIR NOX Ozone Season allowance is a 
limitedauthorization to emit

[[Page 823]]

one ton of nitrogen oxides in accordancewith the CAIR NOX 
Ozone Season Trading Program. Noprovision of the CAIR NOX 
Ozone Season Trading Program,the CAIR permit application, the CAIR 
permit, or an exemption underSec. 96.305 and no provision of law shall 
be construed tolimit the authority of the State or the United States to 
terminate orlimit such authorization.
    (6) A CAIR NOX Ozone Season allowance does notconstitute 
a property right.
    (7) Upon recordation by the Administrator under subpart FFFF,GGGG, 
or IIII of this part, every allocation, transfer, or deductionof a CAIR 
NOX Ozone Season allowance to or from a CAIRNOX 
Ozone Season source's compliance account isincorporated automatically in 
any CAIR permit of the source.
    (d) Excess emissions requirements. If a CAIR NOXOzone 
Season source emits nitrogen oxides during any control period inexcess 
of the CAIR NOX Ozone Season emissions limitation,then:
    (1) The owners and operators of the source and each 
CAIRNOX Ozone Season unit at the source shall surrender 
theCAIR NOX Ozone Season allowances required for 
deductionunder Sec. 96.354(d)(1) and pay any fine, penalty, 
orassessment or comply with any other remedy imposed, for the 
sameviolations, under the Clean Air Act or applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRNOX Ozone 
Season source and each CAIR NOXOzone Season unit at the 
source shall keep on site at the source eachof the following documents 
for a period of 5 years from the date thedocument is created. This 
period may be extended for cause, at anytime before the end of 5 years, 
in writing by the permitting authorityor the Administrator.
    (i) The certificate of representation under Sec. 96.313for the CAIR 
designated representative for the source and each CAIRNOX 
Ozone Season unit at the source and all documents thatdemonstrate the 
truth of the statements in the certificate ofrepresentation; provided 
that the certificate and documents shall beretained on site at the 
source beyond such 5-year period until suchdocuments are superseded 
because of the submission of a newcertificate of representation under 
Sec. 96.313 changing theCAIR designated representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HHHH of this part, provided that to the extent that subpartHHHH of this 
part provides for a 3-year period for recordkeeping, the3-year period 
shall apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
CAIRNOX Ozone Season Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the CAIR 
NOXOzone Season Trading Program or to demonstrate compliance 
with therequirements of the CAIR NOX Ozone Season Trading 
Program.
    (2) The CAIR designated representative of a CAIR NOXOzone 
Season source and each CAIR NOX Ozone Season unit atthe 
source shall submit the reports required under the CAIRNOX 
Ozone Season Trading Program, including those undersubpart HHHH of this 
part.
    (f) Liability. (1) Each CAIR NOX Ozone Seasonsource and 
each CAIR NOX Ozone Season unit shall meet therequirements of 
the CAIR NOX Ozone Season Trading Program.
    (2) Any provision of the CAIR NOX Ozone Season 
TradingProgram that applies to a CAIR NOX Ozone Season source 
orthe CAIR designated representative of a CAIR NOX 
OzoneSeason source shall also apply to the owners and operators of 
suchsource and of the CAIR NOX Ozone Season units at 
thesource.
    (3) Any provision of the CAIR NOX Ozone Season 
TradingProgram that applies to a CAIR NOX Ozone Season unit 
orthe CAIR designated representative of a CAIR NOX 
OzoneSeason unit shall also apply to the owners and operators of such 
unit.

[[Page 824]]

    (g) Effect on other authorities. No provision of theCAIR 
NOX Ozone Season Trading Program, a CAIR permitapplication, a 
CAIR permit, or an exemption underSec. 96.305 shall be construed as 
exempting or excluding theowners and operators, and the CAIR designated 
representative, of aCAIR NOX Ozone Season source or CAIR 
NOX OzoneSeason unit from compliance with any other provision 
of theapplicable, approved State implementation plan, a 
federallyenforceable permit, or the Clean Air Act.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25393, Apr.28, 2006]



Sec. 96.307  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Ozone Season Trading Program, to begin on 
theoccurrence of an act or event shall begin on the day the act or 
eventoccurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Ozone Season Trading Program, to begin before 
theoccurrence of an act or event shall be computed so that the 
periodends the day before the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR NOX Ozone Season Trading Program, falls 
ona weekend or a State or Federal holiday, the time period shall 
beextended to the next business day.



Sec. 96.308  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR NOX Ozone Season Trading Program are set forth inpart 
78 of this chapter.



  Subpart BBBB_CAIR Designated Representative for CAIRNOX Ozone Season 
                                 Sources

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.310  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 96.311, each CAIRNOX 
Ozone Season source, including all CAIRNOX Ozone Season units 
at the source, shall have one andonly one CAIR designated 
representative, with regard to all mattersunder the CAIR NOX 
Ozone Season Trading Program concerningthe source or any CAIR 
NOX Ozone Season unit at thesource.
    (b) The CAIR designated representative of the CAIR 
NOXOzone Season source shall be selected by an agreement 
binding on theowners and operators of the source and all CAIR 
NOX OzoneSeason units at the source and shall act in 
accordance with thecertification statement in Sec. 96.313(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.313, the CAIR designatedrepresentative 
of the source shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachowner and operator 
of the CAIR NOX Ozone Season sourcerepresented and each CAIR 
NOX Ozone Season unit at thesource in all matters pertaining 
to the CAIR NOX OzoneSeason Trading Program, notwithstanding 
any agreement between the CAIRdesignated representative and such owners 
and operators. The ownersand operators shall be bound by any decision or 
order issued to theCAIR designated representative by the permitting 
authority, theAdministrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports willbe 
accepted, and no CAIR NOX Ozone Season AllowanceTracking 
System account will be established for a CAIR NOXOzone Season 
unit at a source, until the Administrator has received acomplete 
certificate of representation under Sec. 96.313 fora CAIR designated 
representative of the source and the CAIRNOX Ozone Season 
units at the source.
    (e)(1) Each submission under the CAIR NOX Ozone 
SeasonTrading Program shall be submitted, signed, and certified by the 
CAIRdesignated representative for each CAIR NOX Ozone 
Seasonsource on behalf of which the submission is made. Each such 
submissionshall include the following certification statement by the 
CAIRdesignated representative: ``I am authorized to make thissubmission 
on behalf of the owners and operators of the

[[Page 825]]

source orunits for which the submission is made. I certify under penalty 
of lawthat I have personally examined, and am familiar with, the 
statementsand information submitted in this document and all its 
attachments.Based on my inquiry of those individuals with primary 
responsibilityfor obtaining the information, I certify that the 
statements andinformation are to the best of my knowledge and belief 
true, accurate,and complete. I am aware that there are significant 
penalties forsubmitting false statements and information or omitting 
requiredstatements and information, including the possibility of fine 
orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRNOX Ozone Season source or a CAIR NOX 
OzoneSeason unit only if the submission has been made, signed, 
andcertified in accordance with paragraph (e)(1) of this section.



Sec. 96.311  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.313may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 96.313, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.
    (c) Except in this section and Sec. Sec. 96.302,96.310(a) and (d), 
96.312, 96.313, 96.315, 96.351, and 96.382 wheneverthe term ``CAIR 
designated representative'' is used insubparts AAAA through IIII of this 
part, the term shall be construedto include the CAIR designated 
representative or any alternate CAIRdesignated representative.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25393, Apr.28, 2006]



Sec. 96.312  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any time upon receipt bythe 
Administrator of a superseding complete certificate ofrepresentation 
under Sec. 96.313. Notwithstanding any suchchange, all representations, 
actions, inactions, and submissions bythe previous CAIR designated 
representative before the time and datewhen the Administrator receives 
the superseding certificate ofrepresentation shall be binding on the new 
CAIR designatedrepresentative and the owners and operators of the 
CAIRNOX Ozone Season source and the CAIR NOX 
OzoneSeason units at the source.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under Sec. 96.313.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative and 
theowners and operators of the CAIR NOX Ozone Season 
sourceand the CAIR NOX Ozone Season units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR NOX Ozone Season source or aCAIR 
NOX Ozone Season unit is not included in the list ofowners 
and operators in the certificate of representation underSec. 96.313, 
such owner or operator shall be deemed to besubject to and bound by the 
certificate of representation, therepresentations, actions, inactions, 
and submissions of the CAIRdesignated representative and any alternate 
CAIR designatedrepresentative of

[[Page 826]]

the source or unit, and the decisions andorders of the permitting 
authority, the Administrator, or a court, asif the owner or operator 
were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR NOX Ozone Season source or a CAIRNOX 
Ozone Season unit, including the addition of a newowner or operator, the 
CAIR designated representative or any alternateCAIR designated 
representative shall submit a revision to thecertificate of 
representation under Sec. 96.313 amending thelist of owners and 
operators to include the change.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25393, Apr.28, 2006]



Sec. 96.313  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR NOX Ozone Seasonsource, 
and each CAIR NOX Ozone Season unit at the source,for which 
the certificate of representation is submitted, includingidentification 
and nameplate capacity of each generator served by eachsuch unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
NOXOzone Season source and of each CAIR NOX Ozone 
Season unitat the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR NOX Ozone Season unit at thesource.''
    (ii) ``I certify that I have all the necessary authority tocarry out 
my duties and responsibilities under the CAIRNOX Ozone Season 
Trading Program on behalf of the ownersand operators of the source and 
of each CAIR NOX OzoneSeason unit at the source and that each 
such owner and operator shallbe fully bound by my representations, 
actions, inactions, orsubmissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR NOX Ozone Season unit at thesource shall be bound 
by any order issued to me by the Administrator,the permitting authority, 
or a court regarding the source orunit.''
    (iv) ``Where there are multiple holders of a legal orequitable title 
to, or a leasehold interest in, a CAIR NOXOzone Season unit, 
or where a utility or industrial customer purchasespower from a CAIR 
NOX Ozone Season unit under a life-of-the-unit, firm power 
contractual arrangement, I certify that: I havegiven a written notice of 
my selection as the `CAIR designatedrepresentative' or `alternate CAIR 
designatedrepresentative', as applicable, and of the agreement by which 
Iwas selected to each owner and operator of the source and of each 
CAIRNOX Ozone Season unit at the source; and 
CAIRNOX Ozone Season allowances and proceeds of 
transactionsinvolving CAIR NOX Ozone Season allowances will 
be deemedto be held or distributed in proportion to each holder's 
legal,equitable, leasehold, or contractual reservation or 
entitlement,except that, if such multiple holders have expressly 
provided for adifferent distribution of CAIR NOX Ozone Season 
allowancesby contract, CAIR NOX Ozone Season allowances and 
proceedsof transactions involving CAIR NOX Ozone Season 
allowanceswill be deemed to be held or distributed in accordance with 
thecontract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
certificateof representation shall not be submitted to the permitting 
authorityor the Administrator. Neither the permitting authority nor 
theAdministrator shall be under any obligation to review or

[[Page 827]]

evaluatethe sufficiency of such documents, if submitted.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25393, Apr.28, 2006]



Sec. 96.314  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 96.313 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
96.313 is received by theAdministrator.
    (b) Except as provided in Sec. 96.312(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
NOX Ozone Season TradingProgram.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR NOX Ozone Season allowance 
transfers.



Sec. 96.315  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (a) or(b) of this 
section, the CAIR designated representative or alternateCAIR designated 
representative, as appropriate, must submit to theAdministrator a notice 
of delegation, in a format prescribed by theAdministrator, that includes 
the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate CAIR designated 
representative, as appropriate, andbefore this notice of delegation is 
superseded by another notice ofdelegation under 40 CFR 96.315(d) shall 
be deemed to be an electronicsubmission by me.''
    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 96.315(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
96.315 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of 
thissection shall be effective, with regard to the CAIR 
designatedrepresentative or alternate CAIR designated representative 
identifiedin such notice, upon receipt of such notice by the 
Administrator anduntil receipt by the Administrator of a superseding 
notice ofdelegation submitted by such CAIR designated representative 
oralternate

[[Page 828]]

CAIR designated representative, as appropriate. Thesuperseding notice of 
delegation may replace any previously identifiedagent, add a new agent, 
or eliminate entirely any delegation ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.

[71 FR 25393, Apr. 28, 2006]



                          Subpart CCCC_Permits

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.320  General CAIR NOX Ozone Season Trading Program permitrequirements.

    (a) For each CAIR NOX Ozone Season source required tohave 
a title V operating permit or required, under subpart IIII ofthis part, 
to have a title V operating permit or other federallyenforceable permit, 
such permit shall include a CAIR permitadministered by the permitting 
authority for the title V operatingpermit or the federally enforceable 
permit as applicable. The CAIRportion of the title V permit or other 
federally enforceable permit asapplicable shall be administered in 
accordance with the permittingauthority's title V operating permits 
regulations promulgated underpart 70 or 71 of this chapter or the 
permitting authority'sregulations for other federally enforceable 
permits as applicable,except as provided otherwise by Sec. 96.305, this 
subpartand subpart IIII of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRNOX Ozone Season source and the CAIR NOX 
OzoneSeason units at the source covered by the CAIR permit, all 
applicableCAIR NOX Ozone Season Trading Program, 
CAIRNOX Annual Trading Program, and CAIR 
SO2Trading Program requirements and shall be a complete and 
separableportion of the title V operating permit or other federally 
enforceablepermit under paragraph (a) of this section.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006]



Sec. 96.321  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
NOX Ozone Season source required to have a title Voperating 
permit shall submit to the permitting authority a completeCAIR permit 
application under Sec. 96.322 for the sourcecovering each CAIR 
NOX Ozone Season unit at the source atleast 18 months (or 
such lesser time provided by the permittingauthority) before the later 
of January 1, 2009 or the date on whichthe CAIR NOX Ozone 
Season unit commences commercialoperation, except as provided in Sec. 
96.383(a).
    (b) Duty to Reapply. For a CAIR NOX Ozone Seasonsource 
required to have a title V operating permit, the CAIRdesignated 
representative shall submit a complete CAIR permitapplication under 
Sec. 96.322 for the source covering eachCAIR NOX Ozone 
Season unit at the source to renew the CAIRpermit in accordance with the 
permitting authority's title V operatingpermits regulations addressing 
permit renewal, except as provided inSec. 96.383(b).

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006]



Sec. 96.322  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR NOX Ozone Season source 
forwhich the application is submitted, in a format prescribed by 
thepermitting authority:
    (a) Identification of the CAIR NOX Ozone Seasonsource;
    (b) Identification of each CAIR NOX Ozone Season unitat 
the CAIR NOX Ozone Season source; and
    (c) The standard requirements under Sec. 96.306.



Sec. 96.323  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all elements required for a

[[Page 829]]

complete CAIRpermit application under Sec. 96.322.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 96.302 and, upon recordationby the 
Administrator under subpart FFFF, GGGG, or IIII of this part,every 
allocation, transfer, or deduction of a CAIR NOXOzone Season 
allowance to or from the compliance account of the CAIRNOX 
Ozone Season source covered by the permit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRNOX Ozone Season source's title V operating permit 
orother federally enforceable permit as applicable.



Sec. 96.324  CAIR permit revisions.

    Except as provided in Sec. 96.323(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subpart DDDD [Reserved]



         Subpart EEEE_CAIR NOX Ozone SeasonAllowance Allocations

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.340  State trading budgets.

    (a) Except as provided in paragraph (b) of this section, the 
Statetrading budgets for annual allocations of CAIR NOX 
OzoneSeason allowances for the control periods in 2009 through 2014 and 
in2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                        State trading     State trading
                                       budget for2009-   budget for 2015
                State                    2014 (tons)      andthereafter
                                                             (tons)
------------------------------------------------------------------------
Alabama.............................            32,182            26,818
Arkansas............................            11,515             9,596
Connecticut.........................             2,559             2,559
Delaware............................             2,226             1,855
District of Columbia................               112                94
Florida.............................            47,912            39,926
Illinois............................            30,701            28,981
Indiana.............................            45,952            39,273
Iowa................................            14,263            11,886
Kentucky............................            36,045            30,587
Louisiana...........................            17,085            14,238
Maryland............................            12,834            10,695
Massachusetts.......................             7,551             6,293
Michigan............................            28,971            24,142
Mississippi.........................             8,714             7,262
Missouri............................            26,678            22,231
New Jersey..........................             6,654             5,545
New York............................            20,632            17,193
North Carolina......................            28,392            23,660
Ohio................................            45,664            39,945
Pennsylvania........................            42,171            35,143
South Carolina......................            15,249            12,707
Tennessee...........................            22,842            19,035
Virginia............................            15,994            13,328
West Virginia.......................            26,859            26,525
Wisconsin...........................            17,987            14,989
------------------------------------------------------------------------

    (b) If a permitting authority issues additional CAIRNOX 
Ozone Season allowance allocations underSec. 51.123(aa)(2)(iii)(A) of 
this chapter, the amount inthe State trading budget for a control period 
in a calendar year willbe the sum of the amount set forth for the State 
and for the year inparagraph (a) of this section and the amount of 
additional CAIRNOX Ozone Season allowance allocations issued 
underSec. 51.123(aa)(2)(iii)(A) of this chapter for the year.



Sec. 96.341  Timing requirements for CAIR NOX Ozone Season allowanceallocations.

    (a) By October 31, 2006, the permitting authority will submit tothe 
Administrator the CAIR NOX Ozone Season allowanceallocations, 
in a format prescribed by the Administrator and inaccordance with Sec. 
96.342(a) and (b), for the controlperiods in 2009, 2010, 2011, 2012, 
2013, and 2014.
    (b) By October 31, 2009 and October 31 of each year thereafter,the 
permitting authority will submit to the Administrator the 
CAIRNOX Ozone Season allowance allocations, in a 
formatprescribed by the Administrator and in accordance withSec. 
96.342(a) and (b), for the control period in the sixthyear after the 
year of the applicable deadline for submission underthis paragraph.
    (c) By July 31, 2009 and July 31 of each year thereafter, 
thepermitting

[[Page 830]]

authority will submit to the Administrator the CAIRNOX Ozone 
Season allowance allocations, in a formatprescribed by the Administrator 
and in accordance withSec. 96.342(c), (a), and (d), for the control 
period in theyear of the applicable deadline for submission under this 
paragraph.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006]



Sec. 96.342  CAIR NOX Ozone Season allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect toCAIR 
NOX Ozone Season allowance allocations underparagraph (b) of 
this section for each CAIR NOX OzoneSeason unit will be:
    (i) For units commencing operation before January 1, 2001 theaverage 
of the 3 highest amounts of the unit's adjusted control periodheat input 
for 2000 through 2004, with the adjusted control periodheat input for 
each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 60 percent; and
    (C) If the unit is not subject to paragraph (a)(1)(i)(A) or (B) 
ofthis section, the unit's control period heat input for such year 
ismultiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001and 
operating each calendar year during a period of 5 or moreconsecutive 
calendar years, the average of the 3 highest amounts ofthe unit's total 
converted control period heat input over the firstsuch 5 years.
    (2)(i) A unit's control period heat input, and a unit's status 
ascoal-fired or oil-fired, for a calendar year under paragraph 
(a)(1)(i)of this section, and a unit's total tons of NOX 
emissionsduring a control period in a calendar year under paragraph 
(c)(3) ofthis section, will be determined in accordance with part 75 of 
thischapter, to the extent the unit was otherwise subject to 
therequirements of part 75 of this chapter for the year, or will be 
basedon the best available data reported to the permitting authority 
forthe unit, to the extent the unit was not otherwise subject to 
therequirements of part 75 of this chapter for the year.
    (ii) A unit's converted control period heat input for a calendaryear 
specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of 
thissection, the control period gross electrical output of the 
generatoror generators served by the unit multiplied by 7,900 Btu/kWh, 
if theunit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is 
notcoal-fired for the year, and divided by 1,000,000 Btu/mmBtu, 
providedthat if a generator is served by 2 or more units, then the 
grosselectrical output of the generator will be attributed to each unit 
inproportion to the unit's share of the total control period heat 
inputof such units for the year;
    (B) For a unit that is a boiler and has equipment used to 
produceelectricity and useful thermal energy for industrial, 
commercial,heating, or cooling purposes through the sequential use of 
energy, thetotal heat energy (in Btu) of the steam produced by the 
boiler duringthe control period, divided by 0.8 and by 1,000,000 Btu/
mmBtu; or
    (C) For a unit that is a combustion turbine and has equipment usedto 
produce electricity and useful thermal energy for industrial,commercial, 
heating, or cooling purposes through the sequential use ofenergy, the 
control period gross electrical output of the encloseddevice comprising 
the compressor, combustor, and turbine multiplied by3,413 Btu/kWh, plus 
the total heat energy (in Btu) of the steamproduced by any associated 
heat recovery steam generator during thecontrol period divided by 0.8, 
and with the sum divided by 1,000,000Btu/mmBtu.
    (b)(1) For each control period in 2009 and thereafter, thepermitting 
authority will allocate to all CAIR NOX OzoneSeason units in 
the State that have a baseline heat input (asdetermined under paragraph 
(a) of this section) a total amount of CAIRNOX Ozone Season 
allowances equal to 95 percent for acontrol period during 2009 through 
2014, and 97 percent for a controlperiod during 2015 and thereafter, of 
the tons of NOXemissions in the State trading

[[Page 831]]

budget under Sec. 96.340(except as provided in paragraph (d) of this 
section).
    (2) The permitting authority will allocate CAIR NOXOzone 
Season allowances to each CAIR NOX Ozone Season unitunder 
paragraph (b)(1) of this section in an amount determined bymultiplying 
the total amount of CAIR NOX Ozone Seasonallowances allocated 
under paragraph (b)(1) of this section by theratio of the baseline heat 
input of such CAIR NOX OzoneSeason unit to the total amount 
of baseline heat input of all suchCAIR NOX Ozone Season units 
in the State and rounding tothe nearest whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the 
permittingauthority will allocate CAIR NOX Ozone Season 
allowancesto CAIR NOX Ozone Season units in a State that are 
notallocated CAIR NOX Ozone Season allowances under 
paragraph(b) of this section because the units do not yet have a 
baseline heatinput under paragraph (a) of this section or because the 
units have abaseline heat input but all CAIR NOX Ozone 
Seasonallowances available under paragraph (b) of this section for 
thecontrol period are already allocated, in accordance with the 
followingprocedures:
    (1) The permitting authority will establish a separate new unitset-
aside for each control period. Each new unit set-aside will beallocated 
CAIR NOX Ozone Season allowances equal to 5percent for a 
control period in2009 through 2014, and 3 percent for acontrol period in 
2015 and thereafter, of the amount of tons ofNOX emissions in 
the State trading budget underSec. 96.340.
    (2) The CAIR designated representative of such a CAIRNOX 
Ozone Season unit may submit to the permittingauthority a request, in a 
format specified by the permittingauthority, to be allocated CAIR 
NOX Ozone Seasonallowances, starting with the later of the 
control period in 2009 orthe first control period after the control 
period in which the CAIRNOX Ozone Season unit commences 
commercial operation anduntil the first control period for which the 
unit is allocated CAIRNOX Ozone Season allowances under 
paragraph (b) of thissection. A separate CAIR NOX Ozone 
Season allowanceallocation request for each control period for which 
CAIRNOX Ozone Season allowances are sought must be 
submittedon or before February 1 before such control period and after 
the dateon which the CAIR NOX Ozone Season unit 
commencescommercial operation.
    (3) In a CAIR NOX Ozone Season allowance 
allocationrequest under paragraph (c)(2) of this section, the CAIR 
designatedrepresentative may request for a control period CAIR 
NOXOzone Season allowances in an amount not exceeding the 
CAIRNOX Ozone Season unit's total tons of 
NOXemissions during the control period immediately before 
such controlperiod.
    (4) The permitting authority will review each CAIR 
NOXOzone Season allowance allocation request under paragraph 
(c)(2) ofthis section and will allocate CAIR NOX Ozone 
Seasonallowances for each control period pursuant to such request 
asfollows:
    (i) The permitting authority will accept an allowance 
allocationrequest only if the request meets, or is adjusted by the 
permittingauthority as necessary to meet, the requirements of paragraphs 
(c)(2)and (3) of this section.
    (ii) On or after February 1 before the control period, thepermitting 
authority will determine the sum of the CAIRNOX Ozone Season 
allowances requested (as adjusted underparagraph (c)(4)(i) of this 
section) in all allowance allocationrequests accepted under paragraph 
(c)(4)(i) of this section for thecontrol period.
    (iii) If the amount of CAIR NOX Ozone Seasonallowances in 
the new unit set-aside for the control period is greaterthan or equal to 
the sum under paragraph (c)(4)(ii) of this section,then the permitting 
authority will allocate the amount of CAIRNOX Ozone Season 
allowances requested (as adjusted underparagraph (c)(4)(i) of this 
section) to each CAIR NOXOzone Season unit covered by an 
allowance allocation request acceptedunder paragraph (c)(4)(i) of this 
section.
    (iv) If the amount of CAIR NOX Ozone Season allowancesin 
the new unit set-aside for the control period is less than the sumunder 
paragraph (c)(4)(ii) of this section, then the permittingauthority will 
allocate to each CAIR NOX

[[Page 832]]

Ozone Seasonunit covered by an allowance allocation request accepted 
underparagraph (c)(4)(i) of this section the amount of the 
CAIRNOX Ozone Season allowances requested (as adjusted 
underparagraph (c)(4)(i) of this section), multiplied by the amount of 
CAIRNOX Ozone Season allowances in the new unit set-aside 
forthe control period, divided by the sum determined under paragraph 
(c)(4)(ii) of this section, and rounded to the nearest whole allowance 
asappropriate.
    (v) The permitting authority will notify each CAIR 
designatedrepresentative that submitted an allowance allocation request 
of theamount of CAIR NOX Ozone Season allowances (if 
any)allocated for the control period to the CAIR NOX 
OzoneSeason unit covered by the request.
    (d) If, after completion of the procedures under paragraph (c)(4)of 
this section for a control period, any unallocated CAIRNOX 
Ozone Season allowances remain in the new unit set-aside for the control 
period, the permitting authority will allocateto each CAIR 
NOX Ozone Season unit that was allocated CAIRNOX 
Ozone Season allowances under paragraph (b) of thissection an amount of 
CAIR NOX Ozone Season allowancesequal to the total amount of 
such remaining unallocated CAIRNOX Ozone Season allowances, 
multiplied by the unit'sallocation under paragraph (b) of this section, 
divided by 95 percentfor a control period during 2009 through 2014, and 
97 percent for acontrol period during 2015 and thereafter, of the amount 
of tons ofNOX emissions in the State trading budget 
underSec. 96.340, and rounded to the nearest whole allowance 
asappropriate.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



       Subpart FFFF_CAIR NOX Ozone Season AllowanceTracking System

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.350  [Reserved]



Sec. 96.351  Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 96.384(e), upon 
receipt of a complete certificate ofrepresentation under Sec. 96.313, 
the Administrator willestablish a compliance account for the CAIR 
NOX OzoneSeason source for which the certificate of 
representation wassubmitted, unless the source already has a compliance 
account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR NOX Ozone Seasonallowances. An application 
for a general account may designate one andonly one CAIR authorized 
account representative and one and only onealternate CAIR authorized 
account representative who may act on behalfof the CAIR authorized 
account representative. The agreement by whichthe alternate CAIR 
authorized account representative is selected shallinclude a procedure 
for authorizing the alternate CAIR authorizedaccount representative to 
act in lieu of the CAIR authorized accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of the CAIRauthorized account 
representative and any alternate CAIR authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR NOX Ozone Seasonallowances held in the general 
account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount

[[Page 833]]

representative, as applicable, by an agreement that isbinding on all 
persons who have an ownership interest with respect toCAIR 
NOX Ozone Season allowances held in the generalaccount. I 
certify that I have all the necessary authority to carryout my duties 
and responsibilities under the CAIR NOXOzone Season Trading 
Program on behalf of such persons and that eachsuch person shall be 
fully bound by my representations, actions,inactions, or submissions and 
by any order or decision issued to me bythe Administrator or a court 
regarding the general account.''
    (E) The signature of the CAIR authorized account representativeand 
any alternate CAIR authorized account representative and the 
datessigned.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account 
representativeandalternate CAIR authorized account representative. (i) 
Uponreceipt by the Administrator of a complete application for a 
generalaccount under paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR NOX Ozone Season allowances held inthe general account 
in all matters pertaining to the CAIRNOX Ozone Season Trading 
Program, notwithstanding anyagreement between the CAIR authorized 
account representative or anyalternate CAIR authorized account 
representative and such person. Anysuch person shall be bound by any 
order or decision issued to the CAIRauthorized account representative or 
any alternate CAIR authorizedaccount representative by the Administrator 
or a court regarding thegeneral account.
    (C) Any representation, action, inaction, or submission by 
anyalternate CAIR authorized account representative shall be deemed to 
bea representation, action, inaction, or submission by the 
CAIRauthorized account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to CAIRNOX Ozone Season allowances held in the general 
account.Each such submission shall include the following 
certificationstatement by the CAIR authorized account representative or 
anyalternate CAIR authorized account representative: ``I amauthorized to 
make this submission on behalf of the persons having anownership 
interest with respect to the CAIR NOX OzoneSeason allowances 
held in the general account. I certify under penaltyof law that I have 
personally examined, and am familiar with, thestatements and information 
submitted in this document and all itsattachments. Based on my inquiry 
of those individuals with primaryresponsibility for obtaining the 
information, I certify that thestatements and information are to the 
best of my knowledge and belieftrue, accurate, and complete. I am aware 
that there are significantpenalties for submitting false statements and 
information or omittingrequired statements and information, including 
the possibility of fineor imprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by

[[Page 834]]

the Administrator of a superseding completeapplication for a general 
account under paragraph (b)(1) of thissection. Notwithstanding any such 
change, all representations,actions, inactions, and submissions by the 
previous CAIR authorizedaccount representative before the time and date 
when the Administratorreceives the superseding application for a general 
account shall bebinding on the new CAIR authorized account 
representative and thepersons with an ownership interest with respect to 
the CAIRNOX Ozone Season allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a superseding complete application for a 
generalaccount under paragraph (b)(1) of this section. Notwithstanding 
anysuch change, all representations, actions, inactions, and 
submissionsby the previous alternate CAIR authorized account 
representativebefore the time and date when the Administrator receives 
thesuperseding application for a general account shall be binding on 
thenew alternate CAIR authorized account representative and the 
personswith an ownership interest with respect to the CAIR 
NOXOzone Season allowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR NOX Ozone Season allowances in the 
generalaccount is not included in the list of such persons in the 
applicationfor a general account, such person shall be deemed to be 
subject toand bound by the application for a general account, 
therepresentation, actions, inactions, and submissions of the 
CAIRauthorized account representative and any alternate CAIR 
authorizedaccount representative of the account, and the decisions and 
orders ofthe Administrator or a court, as if the person were included in 
suchlist.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR NOX Ozone 
Seasonallowances in the general account, including the addition of a 
newperson, the CAIR authorized account representative or any 
alternateCAIR authorized account representative shall submit a revision 
to theapplication for a general account amending the list of persons 
havingan ownership interest with respect to the CAIR NOX 
OzoneSeason allowances in the general account to include the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.
    (ii) Except as provided in paragraph (b)(3)(i) or (ii) of 
thissection, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternative CAIR authorized account representative 
or thefinality of any decision or order by the Administrator under the 
CAIRNOX Ozone Season Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate 
CAIR authorized account representative for a generalaccount, including 
private legal disputes concerning the proceeds ofCAIR NOX 
Ozone Season allowance transfers.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
the

[[Page 835]]

Administrator provided for or required under subparts FFFF andGGGG of 
this part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FFFF and GGGG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR authorized 
accountrepresentative or alternate CAIR authorized account 
representative;
    (B) The name, address, e-mail address, telephone number, 
and,facsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 96.351(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``Until this notice of delegation is supersededby 
another notice of delegation under 40 CFR 96.351(b)(5)(iv), I agreeto 
maintain an e-mail account and to notify the Administratorimmediately of 
any change in my e-mail address unless all delegationof authority by me 
under 40 CFR 96.351(b)(5) is terminated.''.
    (iv) A notice of delegation submitted under paragraph (b)(5)(iii)of 
this section shall be effective, with regard to the CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative, as appropriate. The superseding notice of 
delegationmay replace any previously identified agent, add a new agent, 
oreliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.352  Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR NOX Ozone 
SeasonAllowance Tracking System account, all submissions to 
theAdministrator pertaining to the account, including, but not 
limitedto, submissions concerning the deduction or transfer of 
CAIRNOX Ozone Season allowances in the account, shall be 
madeonly by the CAIR authorized account representative for the account.



Sec. 96.353  Recordation of CAIR NOX Ozone Season allowanceallocations.

    (a) By September 30, 2007, the Administrator will record in theCAIR 
NOX

[[Page 836]]

Ozone Season source's compliance account theCAIR NOX Ozone 
Season allowances allocated for the CAIRNOX Ozone Season 
units at the source, as submitted by thepermitting authority in 
accordance with Sec. 96.341(a), forthe control periods in 2009, 2010, 
2011, 2012, 2013, and 2014.
    (b) By December 1, 2009, the Administrator will record in the 
CAIRNOX Ozone Season source's compliance account the 
CAIRNOX Ozone Season allowances allocated for the 
CAIRNOX Ozone Season units at the source, as submitted by 
thepermitting authority in accordance with Sec. 96.341(b), forthe 
control period in 2015.
    (c) By December 1, 2010 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX Ozone 
Seasonsource's compliance account the CAIR NOX Ozone 
Seasonallowances allocated for the CAIR NOX Ozone Season 
unitsat the source, as submitted by the permitting authority in 
accordancewith Sec. 96.341(b), for the control period in the sixthyear 
after the year of the applicable deadline for recordation underthis 
paragraph.
    (d) By September 1, 2009 and September 1 of each year thereafter,the 
Administrator will record in the CAIR NOX Ozone 
Seasonsource's compliance account the CAIR NOX Ozone 
Seasonallowances allocated for the CAIR NOX Ozone Season 
unitsat the source, as submitted by the permitting authority or 
determinedby the Administrator in accordance with Sec. 96.341(c), 
forthe control period in the year of the applicable deadline 
forrecordation under this paragraph.
    (e) Serial numbers for allocated CAIR NOXOzone Season 
allowances. When recording the allocation of CAIRNOX Ozone 
Season allowances for a CAIR NOXOzone Season unit in a 
compliance account, the Administrator willassign each CAIR 
NOX Ozone Season allowance a uniqueidentification number that 
will include digits identifying the year ofthe control period for which 
the CAIR NOX Ozone Seasonallowance is allocated.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr.28, 2006]

    Editorial Note: At 71 FR 25395, April 28, 2006,Sec. 96.353(d) was 
amended; however, the amendment could notbe incorporated due to 
inaccurate amendatory instruction.



Sec. 96.354  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOXOzone Season 
allowances are available to be deducted for compliancewith a source's 
CAIR NOX Ozone Season emissions limitationfor a control 
period in a given calendar year only if the CAIRNOX Ozone 
Season allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR NOX Ozone Season allowancetransfer 
correctly submitted for recordation underSec. Sec. 96.360 and 96.361 by 
the allowance transferdeadline for the control period.
    (c)(1) Identification of CAIR NO X OzoneSeason allowances 
by serial number. The CAIR authorized accountrepresentative for a 
source's compliance account may request thatspecific CAIR NOX 
Ozone Season allowances, identified byserial number, in the compliance 
account be deducted for emissions orexcess emissions for a control 
period in accordance with paragraph (b)or (d) of this section. Such 
request shall be submitted to theAdministrator by the allowance transfer 
deadline for the controlperiod and include, in a format prescribed by 
the Administrator, theidentification of the CAIR NOX Ozone 
Season source and theappropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRNOX Ozone Season allowances under paragraph (b) or (d) 
ofthis section from the source's compliance account, in the absence ofan 
identification or in the case of a partial identification of 
CAIRNOX Ozone Season allowances by serial number 
underparagraph (c)(1) of this section, on a first-in, first-out 
(FIFO)accounting basis in the following order:
    (i) Any CAIR NOX Ozone Season allowances that 
wereallocated to the units at the source, in the order of recordation; 
andthen
    (ii) Any CAIR NOX Ozone Season allowances that 
wereallocated to any

[[Page 837]]

entity and transferred and recorded in thecompliance account pursuant to 
subpart GGGG of this part, in the orderof recordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR NOXOzone Season source 
has excess emissions, the Administrator willdeduct from the source's 
compliance account an amount of CAIRNOX Ozone Season 
allowances, allocated for the controlperiod in the immediately following 
calendar year, equal to 3 timesthe number of tons of the source's excess 
emissions.
    (2) Any allowance deduction required under paragraph (d)(1) ofthis 
section shall not affect the liability of the owners andoperators of the 
CAIR NOX Ozone Season source or the CAIRNOX Ozone 
Season units at the source for any fine,penalty, or assessment, or their 
obligation to comply with any otherremedy, for the same violations, as 
ordered under the Clean Air Act orapplicable State law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart IIII.
    (f) Administrator's action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the 
CAIR NOX Ozone Season Trading Programand make appropriate 
adjustments of the information in thesubmissions.
    (2) The Administrator may deduct CAIR NOX Ozone 
Seasonallowances from or transfer CAIR NOX Ozone 
Seasonallowances to a source's compliance account based on the 
informationin the submissions, as adjusted under paragraph (f)(1) of 
thissection, and record such deductions and transfers.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]



Sec. 96.355  Banking.

    (a) CAIR NOX Ozone Season allowances may be banked 
forfuture use or transfer in a compliance account or a general account 
inaccordance with paragraph (b) of this section.
    (b) Any CAIR NOX Ozone Season allowance that is heldin a 
compliance account or a general account will remain in suchaccount 
unless and until the CAIR NOX Ozone Seasonallowance is 
deducted or transferred under Sec. 96.354,Sec. 96.356, or subpart GG 
of this part.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]

    Editorial Note: At 71 FR 25395, April 28, 2006,Sec. 96.355 was 
amended; however, the amendment could not beincorporated due to 
inaccurate amendatory instruction.



Sec. 96.356  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR NOX 
OzoneSeason Allowance Tracking System account. Within 10 business days 
ofmaking such correction, the Administrator will notify the 
CAIRauthorized account representative for the account.



Sec. 96.357  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
96.360 and 96.361 for any CAIRNOX Ozone Season allowances in 
the account to one or moreother CAIR NOX Ozone Season 
Allowance Tracking Systemaccounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
NOX Ozone Season allowances, the Administrator maynotify the 
CAIR authorized account representative for the account thatthe account 
will be closed following 20 business days after the noticeis sent. The 
account will be closed after the 20-day period unless,before the end of 
the 20-day period, the Administrator receives acorrectly submitted 
transfer of CAIR NOX Ozone Seasonallowances into the account 
under Sec. Sec. 96.360 and96.361 or a statement submitted by the CAIR 
authorized accountrepresentative demonstrating to the satisfaction

[[Page 838]]

of theAdministrator good cause as to why the account should not be 
closed.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]



          Subpart GGGG_CAIR NOX Ozone Season AllowanceTransfers

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.360  Submission of CAIR NOX Ozone Season allowancetransfers.

    A CAIR authorized account representative seeking recordation of 
aCAIR NOX Ozone Season allowance transfer shall submit 
thetransfer to the Administrator. To be considered correctly 
submitted,the CAIR NOX Ozone Season allowance transfer shall 
includethe following elements, in a format specified by the 
Administrator:
    (a) The account numbers for both the transferor and 
transfereeaccounts;
    (b) The serial number of each CAIR NOX Ozone 
Seasonallowance that is in the transferor account and is to be 
transferred;and
    (c) The name and signature of the CAIR authorized 
accountrepresentative of the transferor account and the date signed.



Sec. 96.361  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) 
ofthis section) of receiving a CAIR NOX Ozone Seasonallowance 
transfer, the Administrator will record a CAIRNOX Ozone 
Season allowance transfer by moving each CAIRNOX Ozone Season 
allowance from the transferor account tothe transferee account as 
specified by the request, provided that:
    (1) The transfer is correctly submitted underSec. 96.360; and
    (2) The transferor account includes each CAIR NOXOzone 
Season allowance identified by serial number in the transfer.
    (b) A CAIR NOX Ozone Season allowance transfer that 
issubmitted for recordation after the allowance transfer deadline for 
acontrol period and that includes any CAIR NOX Ozone 
Seasonallowances allocated for any control period before such 
allowancetransfer deadline will not be recorded until after the 
Administratorcompletes the deductions under Sec. 96.354 for the 
controlperiod immediately before such allowance transfer deadline.
    (c) Where a CAIR NOX Ozone Season allowance 
transfersubmitted for recordation fails to meet the requirements of 
paragraph(a) of this section, the Administrator will not record such 
transfer.



Sec. 96.362  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR NOX Ozone Season allowance 
transferunder Sec. 96.361, the Administrator will notify the 
CAIRauthorized account representatives of both the transferor 
andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR NOX Ozone Season allowance transferthat 
fails to meet the requirements of Sec. 96.361(a), theAdministrator will 
notify the CAIR authorized account representativesof both accounts 
subject to the transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
NOX Ozone Season allowance transfer for recordationfollowing 
notification of non-recordation.



                  Subpart HHHH_Monitoring and Reporting

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.370  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR NOX Ozone 
Seasonunit, shall comply with the monitoring, recordkeeping, and 
reportingrequirements as provided in this subpart and in subpart H of 
part 75of this chapter. For purposes of complying with such 
requirements, thedefinitions in Sec. 96.302 and in Sec. 72.2 ofthis 
chapter shall apply, and the terms ``affected unit,''``designated 
representative,'' and ``continuousemission monitoring system'' (or 
``CEMS'') in part75 of this chapter shall be deemed to refer

[[Page 839]]

to the terms``CAIR NOX Ozone Season unit,'' ``CAIRdesignated 
representative,'' and ``continuous emissionmonitoring system'' (or 
``CEMS'') respectively, asdefined in Sec. 96.302. The owner or operator 
of a unit thatis not a CAIR NOX Ozone Season unit but that is 
monitoredunder Sec. 75.72(b)(2)(ii) of this chapter shall comply 
withthe same monitoring, recordkeeping, and reporting requirements as 
aCAIR NOX Ozone Season unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR NOXOzone 
Season unit shall:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass emissions and individual unit 
heatinput (including all systems required to monitor 
NOXemission rate, NOX concentration, stack gas 
moisturecontent, stack gas flow rate, CO2 or 
O2concentration, and fuel flow rate, as applicable, in 
accordance withSec. Sec. 75.71 and 75.72 of this chapter);
    (2) Successfully complete all certification tests required 
underSec. 96.371 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet the monitoringsystem 
certification and other requirements of paragraphs (a)(1) and(2) of this 
section on or before the following dates. The owner oroperator shall 
record, report, and quality-assure the data from themonitoring systems 
under paragraph (a)(1) of this section on and afterthe following dates.
    (1) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation before July 1, 2007,by May 1, 
2008.
    (2) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation on or after July 1,2007 and 
that reports on an annual basis underSec. 96.374(d), by the later of 
the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation; or
    (ii) May 1, 2008.
    (3) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation on or after July 1,2007 and 
that reports on a control period basis underSec. 96.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation; or
    (ii) If the compliance date under paragraph (b)(3)(i) of thissection 
is not during a control period, May 1 immediately followingthe 
compliance date under paragraph (b)(3)(i) of this section.
    (4) For the owner or operator of a CAIR NOX OzoneSeason 
unit for which construction of a new stack or flue orinstallation of 
add-on NOX emission controls is completedafter the applicable 
deadline under paragraph (b)(1), (2), (6), or (7)of this section and 
that reports on an annual basis underSec. 96.374(d), by 90 unit 
operating days or 180 calendardays, whichever occurs first, after the 
date on which emissions firstexit to the atmosphere through the new 
stack or flue or add-onNOX emissions controls.
    (5) For the owner or operator of a CAIR NOX OzoneSeason 
unit for which construction of a new stack or flue orinstallation of 
add-on NOX emission controls is completedafter the applicable 
deadline under paragraph (b)(1), (3), (6), or (7)of this section and 
that reports on a control period basis underSec. 96.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which emissions first exit to the 
atmospherethrough the new stack or flue or add-on NOX 
emissionscontrols; or
    (ii) If the compliance date under paragraph (b)(5)(i) of thissection 
is not during a control period, May 1 immediately followingthe 
compliance date under paragraph (b)(5)(i) of this section.

[[Page 840]]

    (6) Notwithstanding the dates in paragraphs (b)(1), (2), and(3) of 
this section, for the owner or operator of a unit for which aCAIR 
NOX Ozone Season opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart IIII of this part, by the date specified inSec. 96.384(b).
    (7) Notwithstanding the dates in paragraphs (b)(1), (2), and (3)of 
this section, for the owner or operator of a CAIR NOXOzone 
Season opt-in unit, by the date on which the CAIRNOX Ozone 
Season opt-in unit under subpart IIII of thispart enters the CAIR 
NOX Ozone Season Trading Program asprovided in Sec. 
96.384(g).
    (c) Reporting data. The owner or operator of a CAIRNOX 
Ozone Season unit that does not meet the applicablecompliance date set 
forth in paragraph (b) of this section for anymonitoring system under 
paragraph (a)(1) of this section shall, foreach such monitoring system, 
determine, record, and report maximumpotential (or, as appropriate, 
minimum potential) values forNOX concentration, 
NOX emission rate, stackgas flow rate, stack gas moisture 
content, fuel flow rate, and anyother parameters required to determine 
NOX mass emissionsand heat input in accordance with Sec. 
75.31(b)(2) or (c)(3)of this chapter, section 2.4 of appendix D to part 
75 of this chapter,or section 2.5 of appendix E to part 75 of this 
chapter, asapplicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRNOX 
Ozone Season unit shall use any alternative monitoringsystem, 
alternative reference method, or any other alternative to anyrequirement 
of this subpart without having obtained prior writtenapproval in 
accordance with Sec. 96.375.
    (2) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall operate the unit so as to discharge, or allow to bedischarged, 
NOX emissions to the atmosphere withoutaccounting for all 
such emissions in accordance with the applicableprovisions of this 
subpart and part 75 of this chapter.
    (3) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall disrupt the continuous emission monitoring system, anyportion 
thereof, or any other approved emission monitoring method, andthereby 
avoid monitoring and recording NOX mass emissionsdischarged 
into the atmosphere or heat input, except for periods ofrecertification 
or periods when calibration, quality assurancetesting, or maintenance is 
performed in accordance with the applicableprovisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall retire or permanently discontinue use of the continuousemission 
monitoring system, any component thereof, or any otherapproved 
monitoring system under this subpart, except under any one ofthe 
following circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 96.305 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
permitting authority for use at that unit that providesemission data for 
the same pollutant or parameter as the retired ordiscontinued monitoring 
system; or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
96.371(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRNOX Ozone Season unit is subject to the 
applicableprovisions of part 75 of this chapter concerning units in 
long-termcold storage.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]



Sec. 96.371  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR NOX Ozone Seasonunit 
shall be exempt from the initial certification requirements ofthis 
section for a monitoring system under Sec. 96.370(a)(1)if the following 
conditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix B,

[[Page 841]]

appendix D, and appendix E to part 75 of this chapter are fullymet for 
the certified monitoring system described in paragraph (a)(1)of this 
section.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 96.370(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.
    (c) If the Administrator has previously approved a petition 
underSec. 75.17(a) or (b) of this chapter for apportioning 
theNOX emission rate measured in a common stack or a 
petitionunder Sec. 75.66 of this chapter for an alternative to 
arequirement in Sec. 75.12 or Sec. 75.17 of thischapter, the CAIR 
designated representative shall resubmit thepetition to the 
Administrator under Sec. 96.375(a) todetermine whether the approval 
applies under the CAIR NOXOzone Season Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR NOX Ozone Season unit shall complywith the 
following initial certification and recertificationprocedures for a 
continuous monitoring system (i.e., a continuousemission monitoring 
system and an excepted monitoring system underappendices D and E to part 
75 of this chapter) underSec. 96.370(a)(1). The owner or operator of a 
unit thatqualifies to use the low mass emissions excepted 
monitoringmethodology under Sec. 75.19 of this chapter or thatqualifies 
to use an alternative monitoring system under subpart E ofpart 75 of 
this chapter shall comply with the procedures in paragraph(e) or (f) of 
this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
96.370(a)(1)(including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 96.370(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial 
certification inaccordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in any certifiedcontinuous 
emission monitoring system under Sec. 96.370(a)(1) that may 
significantly affect the ability of the system toaccurately measure or 
record NOX mass emissions or heatinput rate or to meet the 
quality-assurance and quality-controlrequirements of Sec. 75.21 of this 
chapter or appendix B topart 75 of this chapter, the owner or operator 
shall recertify themonitoring system in accordance with Sec. 75.20(b) 
of thischapter. Furthermore, whenever the owner or operator makes 
areplacement, modification, or change to the flue gas handling systemor 
the unit's operation that may significantly change the stack flowor 
concentration profile, the owner or operator shall recertify 
eachcontinuous emission monitoring system whose accuracy is 
potentiallyaffected by the change, in accordance with Sec. 75.20(b) 
ofthis chapter. Examples of changes to a continuous emission 
monitoringsystem that require recertification include: replacement of 
theanalyzer, complete replacement of an existing continuous 
emissionmonitoring system, or change in location or orientation of 
thesampling probe or site. Any fuel flowmeter systems, and any 
exceptedNOX monitoring system under appendix E to part 75 of 
thischapter, under Sec. 96.370(a)(1) are subject to therecertification 
requirements in Sec. 75.20(g)(6) of thischapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and recertification of acontinuous monitoring system under 
Sec. 96.370(a)(1). Forrecertifications, replace the words 
``certification'' and``initial certification'' with the 
word``recertification'', replace the word``certified'' with the word 
``recertified,''and follow the procedures in Sec. Sec. 75.20(b)(5) and 
(g)(7) of this chapter in lieu of the procedures in paragraph 
(d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the permitting authority, theappropriate EPA Regional 
Office, and the Administrator written notice

[[Page 842]]

of the dates of certification testing, in accordance withSec. 96.373.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the permitting authority acertification application for 
each monitoring system. A completecertification application shall 
include the information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined inaccordance with Sec. 
75.20(a)(3) of this chapter. Aprovisionally certified monitoring system 
may be used under the CAIRNOX Ozone Season Trading Program 
for a period not toexceed 120 days after receipt by the permitting 
authority of thecomplete certification application for the monitoring 
system underparagraph (d)(3)(ii) of this section. Data measured and 
recorded bythe provisionally certified monitoring system, in accordance 
with therequirements of part 75 of this chapter, will be considered 
validquality-assured data (retroactive to the date and time of 
provisionalcertification), provided that the permitting authority does 
notinvalidate the provisional certification by issuing a notice 
ofdisapproval within 120 days of the date of receipt of the 
completecertification application by the permitting authority.
    (iv) Certification application approval process. Thepermitting 
authority will issue a written notice of approval ordisapproval of the 
certification application to the owner or operatorwithin 120 days of 
receipt of the complete certification applicationunder paragraph 
(d)(3)(ii) of this section. In the event thepermitting authority does 
not issue such a notice within such 120-dayperiod, each monitoring 
system that meets the applicable performancerequirements of part 75 of 
this chapter and is included in thecertification application will be 
deemed certified for use under theCAIR NOX Ozone Season 
Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then thepermitting authority 
will issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the permitting authority will issuea written 
notice of incompleteness that sets a reasonable date bywhich the CAIR 
designated representative must submit the additionalinformation required 
to complete the certification application. If theCAIR designated 
representative does not comply with the notice ofincompleteness by the 
specified date, then the permitting authoritymay issue a notice of 
disapproval under paragraph (d)(3)(iv)(C) ofthis section. The 120-day 
review period shall not begin before receiptof a complete certification 
application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the permittingauthority will issue a written notice 
of disapproval of thecertification application. Upon issuance of such 
notice ofdisapproval, the provisional certification is invalidated by 
thepermitting authority and the data measured and recorded by 
eachuncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of 
provisionalcertification (as defined under Sec. 75.20(a)(3) of 
thischapter). The owner or operator shall follow the procedures for 
lossof certification in paragraph (d)(3)(v) of this section for 
eachmonitoring system that is disapproved for initial certification.
    (D) Audit decertification. The permitting authority or, fora CAIR 
NOX Ozone Season opt-in unit or a unit for which aCAIR opt-in 
permit application is submitted and not withdrawn and aCAIR opt-in 
permit is not yet issued or denied under subpart IIII ofthis part, the 
Administrator may issue a notice of disapproval of thecertification 
status of a monitor in accordance withSec. 96.372(b).

[[Page 843]]

    (v) Procedures for loss of certification. If thepermitting authority 
or the Administrator issues a notice ofdisapproval of a certification 
application under paragraph (d)(3)(iv)(C) of this section or a notice of 
disapproval of certification statusunder paragraph (d)(3)(iv)(D) of this 
section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified under Sec. 75.20(a)(5)(i)or 
(g)(7) of this chapter:
    (1) For a disapproved NOX emission rate(i.e., 
NOX-diluent) system, the maximum potentialNOX 
emission rate, as defined in Sec. 72.2 ofthis chapter.
    (2) For a disapproved NOX pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of NOX and the maximumpotential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (4) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (5) For a disapproved excepted NOX monitoringsystem under 
appendix E to part 75 of this chapter, the fuel-specificmaximum 
potential NOX emission rate, as defined inSec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the permitting authority's or the Administrator's 
noticeof disapproval, no later than 30 unit operating days after the 
date ofissuance of the notice of disapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) exceptedmethodology under Sec. 75.19 of this 
chapter shall meet theapplicable certification and recertification 
requirements inSec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
theowner or operator of such a unit elects to certify a fuel 
flowmetersystem for heat input determination, the owner or operator 
shall alsomeet the certification and recertification requirements 
inSec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator and, if 
applicable,the permitting authority under subpart E of part 75 of this 
chaptershall comply with the applicable notification and 
applicationprocedures of Sec. 75.20(f) of this chapter.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.372  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D or 
subpart Hof, or appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 96.371 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the

[[Page 844]]

audit, the permitting authority or, for a CAIR NOXOzone 
Season opt-in unit or a unit for which a CAIR opt-in permitapplication 
is submitted and not withdrawn and a CAIR opt-in permit isnot yet issued 
or denied under subpart IIII of this part, theAdministrator will issue a 
notice of disapproval of the certificationstatus of such monitoring 
system. For the purposes of this paragraph,an audit shall be either a 
field audit or an audit of any informationsubmitted to the permitting 
authority or the Administrator. By issuingthe notice of disapproval, the 
permitting authority or theAdministrator revokes prospectively the 
certification status of themonitoring system. The data measured and 
recorded by the monitoringsystem shall not be considered valid quality-
assured data from thedate of issuance of the notification of the revoked 
certificationstatus until the date and time that the owner or operator 
completessubsequently approved initial certification or recertification 
testsfor the monitoring system. The owner or operator shall follow 
theapplicable initial certification or recertification procedures 
inSec. 96.371 for each disapproved monitoring system.



Sec. 96.373  Notifications.

    The CAIR designated representative for a CAIR NOXOzone 
Season unit shall submit written notice to the permittingauthority and 
the Administrator in accordance withSec. 75.61 of this chapter.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]



Sec. 96.374  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements underSec. 75.73 
of this chapter, and the requirements ofSec. 96.310(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIRNOX 
Ozone Season unit shall comply with requirements ofSec. 75.73(c) and 
(e) of this chapter and, for a unit forwhich a CAIR opt-in permit 
application is submitted and not withdrawnand a CAIR opt-in permit is 
not yet issued or denied under subpartIIII of this part, Sec. Sec. 
96.383 and 96.384(a).
    (c) Certification applications. The CAIR designatedrepresentative 
shall submit an application to the permitting authoritywithin 45 days 
after completing all initial certification orrecertification tests 
required under Sec. 96.371, includingthe information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) If the CAIR NOX Ozone Season unit is subject to 
anAcid Rain emissions limitation or a CAIR NOX 
emissionslimitation or if the owner or operator of such unit chooses to 
reporton an annual basis under this subpart, the CAIR 
designatedrepresentative shall meet the requirements of subpart H of 
part 75 ofthis chapter (concerning monitoring of NOX mass 
emissions)for such unit for the entire year and shall report the 
NOXmass emissions data and heat input data for such unit, in 
anelectronic quarterly report in a format prescribed by 
theAdministrator, for each calendar quarter beginning with:
    (i) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering May 1, 2008 through June 30, 2008;
    (ii) For a unit that commences commercial operation on or afterJuly 
1, 2007, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 96.370(b), unless thatquarter is the third or 
fourth quarter of 2007 or the first quarter of2008, in which case 
reporting shall commence in the quarter coveringMay 1, 2008 through June 
30, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart IIII of this part, the calendar quartercorresponding to the date 
specified in Sec. 96.384(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a CAIR NOX Ozone Season opt-in unit undersubpart IIII of 
this part, the calendar quarter corresponding to the

[[Page 845]]

date on which the CAIR NOX Ozone Season opt-in unitenters the 
CAIR NOX Ozone Season Trading Program asprovided in Sec. 
96.384(g).
    (2) If the CAIR NOX Ozone Season unit is not subjectto an 
Acid Rain emissions limitation or a CAIR NOXemissions 
limitation, then the CAIR designated representative shalleither:
    (i) Meet the requirements of subpart H of part 75 
(concerningmonitoring of NOX mass emissions) for such unit 
for theentire year and report the NOX mass emissions data 
andheat input data for such unit in accordance with paragraph (d)(1) 
ofthis section; or
    (ii) Meet the requirements of subpart H of part 75 for the 
controlperiod (including the requirements in Sec. 75.74(c) of 
thischapter) and report NOX mass emissions data and heat 
inputdata (including the data described in Sec. 75.74(c)(6) ofthis 
chapter) for such unit only for the control period of each yearand 
report, in an electronic quarterly report in a format prescribedby the 
Administrator, for each calendar quarter beginning with:
    (A) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering May 1, 2008 through June 30, 2008;
    (B) For a unit that commences commercial operation on or afterJuly 
1, 2007, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 96.370(b), unless that dateis not during a 
control period, in which case reporting shall commencein the quarter 
that includes May 1 through June 30 of the firstcontrol period after 
such date;.
    (C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) ofthis 
section, for a unit for which a CAIR opt-in permit application 
issubmitted and not withdrawn and a CAIR opt-in permit is not yet 
issuedor denied under subpart IIII of this part, the calendar 
quartercorresponding to the date specified in Sec. 96.384(b); and
    (D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) ofthis 
section, for a CAIR NOX Ozone Season opt-in unitunder subpart 
IIII of this part, the calendar quarter corresponding tothe date on 
which the CAIR NOX Ozone Season opt-in unitenters the CAIR 
NOX Ozone Season Trading Program asprovided in Sec. 
96.384(g).
    (2) The CAIR designated representative shall submit each 
quarterlyreport to the Administrator within 30 days following the end of 
thecalendar quarter covered by the report. Quarterly reports shall 
besubmitted in the manner specified in Sec. 75.73(f) of thischapter.
    (3) For CAIR NOX Ozone Season units that are alsosubject 
to an Acid Rain emissions limitation or the CAIRNOX Annual 
Trading Program or CAIR SO2 TradingProgram, quarterly reports 
shall include the applicable data andinformation required by subparts F 
through H of part 75 of thischapter as applicable, in addition to the 
NOX massemission data, heat input data, and other information 
required by thissubpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by the Administrator) in supportof each quarterly report 
based on reasonable inquiry of those personswith primary responsibility 
for ensuring that all of the unit'semissions are correctly and fully 
monitored. The certification shallstate that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications;
    (2) For a unit with add-on NOX emission controls andfor 
all hours where NOX data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
NOX emissions; and
    (3) For a unit that is reporting on a control period basis 
underparagraph (d)(2)(ii) of this section, the NOX 
emissionrate and NOX concentration values substituted for 
missingdata under subpart D of part 75 of this chapter are calculated 
usingonly values from a

[[Page 846]]

control period and do not systematicallyunderestimate NOX 
emissions.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25395, Apr.28, 2006]



Sec. 96.375  Petitions.

    (a) Except as provided in paragraph (b)(2) of this section, theCAIR 
designated representative of a CAIR NOX Ozone Seasonunit that 
is subject to an Acid Rain emissions limitation may submit apetition 
under Sec. 75.66 of this chapter to theAdministrator requesting 
approval to apply an alternative to anyrequirement of this subpart. 
Application of an alternative to anyrequirement of this subpart is in 
accordance with this subpart only tothe extent that the petition is 
approved in writing by theAdministrator, in consultation with the 
permitting authority.
    (b)(1) The CAIR designated representative of a CAIRNOX 
Ozone Season unit that is not subject to an Acid Rainemissions 
limitation may submit a petition under Sec. 75.66of this chapter to the 
permitting authority and the Administratorrequesting approval to apply 
an alternative to any requirement of thissubpart. Application of an 
alternative to any requirement of thissubpart is in accordance with this 
subpart only to the extent that thepetition is approved in writing by 
both the permitting authority andthe Administrator.
    (2) The CAIR designated representative of a CAIR NOXOzone 
Season unit that is subject to an Acid Rain emissions limitationmay 
submit a petition under Sec. 75.66 of this chapter tothe permitting 
authority and the Administrator requesting approval toapply an 
alternative to a requirement concerning any additionalcontinuous 
emission monitoring system required underSec. 75.72 of this chapter. 
Application of an alternative toany such requirement is in accordance 
with this subpart only to theextent that the petition is approved in 
writing by both the permittingauthority and the Administrator.



             Subpart IIII_CAIR NOX Ozone Season Opt-in Units

    Source: 70 FR 25382, May 12, 2005, unless otherwisenoted.



Sec. 96.380  Applicability.

    A CAIR NOX Ozone Season opt-in unit must be a unitthat:
    (a) Is located in the State;
    (b) Is not a CAIR NOX Ozone Season unit underSec. 96.304 
and is not covered by a retired unit exemptionunder Sec. 96.305 that is 
in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart 
HHHHof this part.



Sec. 96.381  General.

    (a) Except as otherwise provided in Sec. Sec. 96.301through 96.304, 
Sec. Sec. 96.306 through 96.308, andsubparts BBBB and CCCC and subparts 
FFFF through HHHH of this part, aCAIR NOX Ozone Season opt-in 
unit shall be treated as aCAIR NOX Ozone Season unit for 
purposes of applying suchsections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HHHH of this part to a unit for which aCAIR opt-
in permit application is submitted and not withdrawn and aCAIR opt-in 
permit is not yet issued or denied under this subpart,such unit shall be 
treated as a CAIR NOX Ozone Season unitbefore issuance of a 
CAIR opt-in permit for such unit.



Sec. 96.382  CAIR designated representative.

    Any CAIR NOX Ozone Season opt-in unit, and any unitfor 
which a CAIR opt-in permit application is submitted and notwithdrawn and 
a CAIR opt-in permit is not yet issued or denied underthis subpart, 
located at the same source as one or more CAIRNOX Ozone 
Season units shall have the same CAIR designatedrepresentative and 
alternate CAIR designated representative as suchCAIR NOX 
Ozone Season units.

[[Page 847]]



Sec. 96.383  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements for aCAIR 
NOX Ozone Season opt-in unit in Sec. 96.380may apply for an 
initial CAIR opt-in permit at any time, except asprovided under Sec. 
96.386 (f) and (g), and, in order toapply, must submit the following:
    (1) A complete CAIR permit application underSec. 96.322;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR NOX Ozone Season unit underSec. 96.304 
and is not covered by a retired unit exemptionunder Sec. 96.305 that is 
in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Vents all of its emissions to a stack; and
    (iv) Has documented heat input for more than 876 hours during the6 
months immediately preceding submission of the CAIR permitapplication 
under Sec. 96.322;
    (3) A monitoring plan in accordance with subpart HHHH of thispart;
    (4) A complete certificate of representation underSec. 96.313 
consistent with Sec. 96.382, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR NOX Ozone Season allowancesunder Sec. 
96.388(b) or Sec. 96.388(c) (subject tothe conditions in Sec. Sec. 
96.384(h) and 96.386(g)). Ifallocation under Sec. 96.388(c) is 
requested, this statementshall include a statement that the owners and 
operators of the unitintend to repower the unit before January 1, 2015 
and that they willprovide, upon request, documentation demonstrating 
such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
NOX Ozone Season opt-in unit shall submit acomplete CAIR 
permit application under Sec. 96.322 to renewthe CAIR opt-in unit 
permit in accordance with the permittingauthority's regulations for 
title V operating permits, or thepermitting authority's regulations for 
other federally enforceablepermits if applicable, addressing permit 
renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR NOX Ozone Season opt-
in unit from the CAIR NOX Ozone Season Trading Program 
inaccordance with Sec. 96.186 or the unit becomes a CAIRNOX 
Ozone Season unit under Sec. 96.304, theCAIR NOX opt-in unit 
shall remain subject to therequirements for a CAIR NOX Ozone 
Season opt-in unit, evenif the CAIR designated representative for the 
CAIR NOXOzone Season opt-in unit fails to submit a CAIR 
permit applicationthat is required for renewal of the CAIR opt-in permit 
under paragraph(b)(1) of this section.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006]



Sec. 96.384  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 96.383 is submitted in accordance with thefollowing:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit under Sec. 96.383. Amonitoring plan is sufficient, for 
purposes of interim review, if theplan appears to contain information 
demonstrating that theNOX emissions rate and heat input of 
the unit and allother applicable parameters are monitored and reported 
in accordancewith subpart HHHH of this part. A determination of 
sufficiency shallnot be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the NOX emissions rate and theheat input of the unit 
and all other applicable parameters, inaccordance with subpart HHHH of 
this part, starting on the date

[[Page 848]]

of certification of the appropriate monitoring systems undersubpart HHHH 
of this part and continuing until a CAIR opt-in permit isdenied under 
Sec. 96.384(f) or, if a CAIR opt-in permit isissued, the date and time 
when the unit is withdrawn from the CAIRNOX Ozone Season 
Trading Program in accordance withSec. 96.386.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR NOXOzone Season 
Trading Program under Sec. 96.384(g), duringwhich period monitoring 
system availability must not be less than 90percent under subpart HHHH 
of this part and the unit must be in fullcompliance with any applicable 
State or Federal emissions oremissions-related requirements.
    (2) To the extent the NOX emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HHHH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HHHH of this part and the unit 
isin full compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR NOXOzone Season 
Trading Program under Sec. 96.384(g), suchinformation shall be used as 
provided in paragraphs (c) and (d) ofthis section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit'sbaseline 
NOX emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's NOXemissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on NOX emission controls during anysuch control 
periods, the average of the amounts of the unit'sNOX 
emissions rate (in lb/mmBtu) for the control periodsunder paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
NOX emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sNOX emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline NOX emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows that 
the unit meets the requirements for a CAIRNOX Ozone Season 
opt-in unit in Sec. 96.380 andmeets the elements certified in Sec. 
96.383(a)(2), thepermitting authority will issue a CAIR opt-in permit. 
The permittingauthority will provide a copy of the CAIR opt-in permit to 
theAdministrator, who will then establish a compliance account for 
thesource that includes the CAIR NOX Ozone Season opt-in 
unitunless the source already has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in

[[Page 849]]

permit for the unit, thepermitting authority determines that the CAIR 
designatedrepresentative fails to show that the unit meets the 
requirements fora CAIR NOX Ozone Season opt-in unit inSec. 
96.380 or meets the elements certified inSec. 96.383(a)(2), the 
permitting authority will issue adenial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR NOX Ozone SeasonTrading 
Program. A unit for which an initial CAIR opt-in permit isissued by the 
permitting authority shall become a CAIR NOXOzone Season opt-
in unit, and a CAIR NOX Ozone Seasonunit, as of the later of 
May 1, 2009 or May 1 of the first controlperiod during which such CAIR 
opt-in permit is issued.
    (h) Repowered CAIR NOX Ozone Season opt-inunit. (1) If 
CAIR designated representative requests, and thepermitting authority 
issues a CAIR opt-in permit providing for,allocation to a CAIR 
NOX Ozone Season opt-in unit of CAIRNOX Ozone 
Season allowances under Sec. 96.388(c)and such unit is repowered after 
its date of entry into the CAIRNOX Ozone Season Trading 
Program under paragraph (g) ofthis section, the repowered unit shall be 
treated as a CAIRNOX Ozone Season opt-in unit replacing the 
original CAIRNOX Ozone Season opt-in unit, as of the date of 
start-upof the repowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline NOX emission rate as the originalCAIR NOX 
Ozone Season opt-in unit, and the original CAIRNOX Ozone 
Season opt-in unit shall no longer be treated asa CAIR NOX 
Ozone Season opt-in unit or a CAIRNOX Ozone Season unit.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.385  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 96.322;
    (2) The certification in Sec. 96.383(a)(2);
    (3) The unit's baseline heat input under Sec. 96.384(c);
    (4) The unit's baseline NOX emission rate underSec. 
96.384(d);
    (5) A statement whether the unit is to be allocated 
CAIRNOX Ozone Season allowances under Sec. 96.388(b)or Sec. 
96.388(c) (subject to the conditions inSec. Sec. 96.384(h) and 
96.386(g));
    (6) A statement that the unit may withdraw from the 
CAIRNOX Ozone Season Trading Program only in accordance 
withSec. 96.386; and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
96.387.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 96.302 and, 
uponrecordation by the Administrator under subpart FFFF or GGGG of 
thispart or this subpart, every allocation, transfer, or deduction of 
CAIRNOX Ozone Season allowances to or from the 
complianceaccount of the source that includes a CAIR NOX 
OzoneSeason opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR NOX Ozone Season opt-in unit islocated and in a title V 
operating permit or other federallyenforceable permit for the source.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006]



Sec. 96.386  Withdrawal from CAIR NOX Ozone Season Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRNOX Ozone Season opt-in unit may withdraw from the 
CAIRNOX Ozone Season Trading Program, but only if 
thepermitting authority issues a notification to the CAIR 
designatedrepresentative of the CAIR NOX Ozone Season opt-in 
unit ofthe acceptance of the withdrawal of the CAIR NOX 
OzoneSeason opt-in unit in accordance with paragraph (d) of this 
section.

[[Page 850]]

    (a) Requesting withdrawal. In order to withdraw a CAIRNOX 
Ozone Season opt-on unit from the CAIR NOXOzone Season 
Trading Program, the CAIR designated representative ofthe CAIR 
NOX Ozone Season opt-in unit shall submit to thepermitting 
authority a request to withdraw effective as of midnight ofSeptember 30 
of a specified calendar year, which date must be at least4 years after 
September 30 of the year of entry into the CAIRNOX Ozone 
Season Trading Program underSec. 96.384(g). The request must be 
submitted no later than90 days before the requested effective date of 
withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOXOzone 
Season opt-in unit covered by a request under paragraph (a) ofthis 
section may withdraw from the CAIR NOX Ozone SeasonTrading 
Program and the CAIR opt-in permit may be terminated underparagraph (e) 
of this section, the following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRNOX 
Ozone Season opt-in unit must meet the requirement tohold CAIR 
NOX Ozone Season allowances underSec. 96.306(c) and cannot 
have any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR NOX 
OzoneSeason opt-in unit CAIR NOX Ozone Season allowances 
equalin amount to and allocated for the same or a prior control period 
asany CAIR NOX Ozone Season allowances allocated to the 
CAIRNOX Ozone Season opt-in unit under Sec. 96.388for any 
control period for which the withdrawal is to be effective. Ifthere are 
no remaining CAIR NOX Ozone Season units at thesource, the 
Administrator will close the compliance account, and theowners and 
operators of the CAIR NOX Ozone Season opt-inunit may submit 
a CAIR NOX Ozone Season allowance transferfor any remaining 
CAIR NOX Ozone Season allowances toanother CAIR 
NOX Ozone Season Allowance Tracking System inaccordance with 
subpart GGGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR NOX Ozone Seasonallowances required), 
the permitting authority will issue anotification to the CAIR designated 
representative of the CAIRNOX Ozone Season opt-in unit of the 
acceptance of thewithdrawal of the CAIR NOX Ozone Season opt-
in unit as ofmidnight on September 30 of the calendar year for which the 
withdrawalwas requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRNOX Ozone Season opt-in unit that the CAIR 
NOXOzone Season opt-in unit's request to withdraw is denied. 
Such CAIRNOX Ozone Season opt-in unit shall continue to be a 
CAIRNOX Ozone Season opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR NOX OzoneSeason opt-in unit to 
terminate the CAIR opt-in permit for such unitas of the effective date 
specified under paragraph (c)(1) of thissection. The unit shall continue 
to be a CAIR NOX OzoneSeason opt-in unit until the effective 
date of the termination andshall comply with all requirements under the 
CAIR NOXOzone Season Trading Program concerning any control 
periods for whichthe unit is a CAIR NOX Ozone Season opt-in 
unit, even ifsuch requirements arise or must be complied with after the 
withdrawaltakes effect.
    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRNOX Ozone Season opt-
in unit's request to withdraw, theCAIR designated representative may 
submit another request to withdrawin accordance with paragraphs (a) and 
(b) of this section.
    (f) Ability to reapply to the CAIR NOX OzoneSeason 
Trading Program. Once a CAIR NOX Ozone Seasonopt-in unit 
withdraws from the CAIR NOX Ozone SeasonTrading Program and 
its CAIR

[[Page 851]]

opt-in permit is terminated underthis section, the CAIR designated 
representative may not submitanother application for a CAIR opt-in 
permit underSec. 96.383 for such CAIR NOX Ozone Season opt-
in unit before the date that is 4 years after the date on which 
thewithdrawal became effective. Such new application for a CAIR opt-
inpermit will be treated as an initial application for a CAIR opt-
inpermit under Sec. 96.384.
    (g) Inability to withdraw. Notwithstanding paragraphs (a)through (f) 
of this section, a CAIR NOX Ozone Season opt-in unit shall 
not be eligible to withdraw from the CAIRNOX Ozone Season 
Trading Program if the CAIR designatedrepresentative of the CAIR 
NOX Ozone Season opt-in unitrequests, and the permitting 
authority issues a CAIR opt-in permitproviding for, allocation to the 
CAIR NOX Ozone Seasonopt-in unit of CAIR NOX Ozone 
Season allowances underSec. 96.388(c).

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006]



Sec. 96.387  Change in regulatory status.

    (a) Notification. If a CAIR NOX Ozone Seasonopt-in unit 
becomes a CAIR NOX Ozone Season unit underSec. 96.304, then 
the CAIR designated representative shallnotify in writing the permitting 
authority and the Administrator ofsuch change in the CAIR NOX 
Ozone Season opt-in unit'sregulatory status, within 30 days of such 
change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
NOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 96.304, thepermitting authority will 
revise the CAIR NOX Ozone Seasonopt-in unit's CAIR opt-in 
permit to meet the requirements of a CAIRpermit under Sec. 96.323, and 
remove the CAIR opt-in permitprovisions, as of the date on which the 
CAIR NOX OzoneSeason opt-in unit becomes a CAIR 
NOX Ozone Season unitunder Sec. 96.304.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes the CAIR NOX Ozone Season opt-in 
unit that becomes a CAIR NOX Ozone Season unit underSec. 
96.304, CAIR NOX Ozone Season allowancesequal in amount to 
and allocated for the same or a prior controlperiod as:
    (A) Any CAIR NOX Ozone Season allowances allocated tothe 
CAIR NOX Ozone Season opt-in unit underSec. 96.388 for any 
control period after the date on whichthe CAIR NOX Ozone 
Season opt-in unit becomes a CAIRNOX Ozone Season unit under 
Sec. 96.304; and
    (B) If the date on which the CAIR NOX Ozone Seasonopt-in 
unit becomes a CAIR NOX Ozone Season unit underSec. 96.304 
is not September 30, the CAIR NOXOzone Season allowances 
allocated to the CAIR NOX OzoneSeason opt-in unit under Sec. 
96.388 for the control periodthat includes the date on which the CAIR 
NOX Ozone Seasonopt-in unit becomes a CAIR NOX 
Ozone Season unit underSec. 96.304, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRNOX Ozone Season opt-in unit becomes a 
CAIRNOX Ozone Season unit under Sec. 96.304 dividedby the 
total number of days in the control period and rounded to thenearest 
whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRNOX 
Ozone Season opt-in unit that becomes a CAIRNOX Ozone Season 
unit under Sec. 96.304 containsthe CAIR NOX Ozone Season 
allowances necessary forcompletion of the deduction under paragraph 
(b)(2)(i) of this section.
    (3)(i) For every control period after the date on which the 
CAIRNOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 96.304, theCAIR NOX Ozone 
Season opt-in unit will be allocated CAIRNOX Ozone Season 
allowances under Sec. 96.342.
    (ii) If the date on which the CAIR NOX Ozone Seasonopt-in 
unit becomes a CAIR NOX Ozone Season unit underSec. 96.304 
is not September 30, the following amount ofCAIR NOX Ozone 
Season allowances will be allocated to theCAIR NOX Ozone 
Season opt-in unit (as a CAIRNOX Ozone Season unit) under 
Sec. 96.342 for thecontrol period that includes the date on which the 
CAIRNOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 96.304:
    (A) The amount of CAIR NOX Ozone Season 
allowancesotherwise allocated to the CAIR NOX Ozone Season 
opt-in

[[Page 852]]

unit (as a CAIR NOX Ozone Season unit) underSec. 96.342 for 
the control period multiplied by;
    (B) The ratio of the number of days, in the control period,starting 
with the date on which the CAIR NOX Ozone Seasonopt-in unit 
becomes a CAIR NOX Ozone Season unit underSec. 96.304, 
divided by the total number of days in thecontrol period; and
    (C) Rounded to the nearest whole allowance as appropriate.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006; 71 
FR 74794, Dec. 13, 2006]



Sec. 96.388  CAIR NOX Ozone Season allowance allocations to CAIRNOX Ozone Season opt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 96.384(e), the permitting authority willallocate CAIR 
NOX Ozone Season allowances to the CAIRNOX Ozone 
Season opt-in unit, and submit to theAdministrator the allocation for 
the control period in which a CAIRNOX Ozone Season opt-in 
unit enters the CAIRNOX Ozone Season Trading Program 
underSec. 96.384(g), in accordance with paragraph (b) or (c) ofthis 
section.
    (2) By no later than July 31 of the control period after thecontrol 
period in which a CAIR NOX Ozone Season opt-inunit enters the 
CAIR NOX Ozone Season Trading Programunder Sec. 96.384(g) 
and July 31 of each year thereafter,the permitting authority will 
allocate CAIR NOX OzoneSeason allowances to the CAIR 
NOX Ozone Season opt-inunit, and submit to the Administrator 
the allocation for the controlperiod that includes such submission 
deadline and in which the unit isa CAIR NOX Ozone Season opt-
in unit, in accordance withparagraph (b)or (c) of this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR NOX Ozone Season opt-in unit is to beallocated CAIR 
NOX Ozone Season allowances, the permittingauthority will 
allocate in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRNOX Ozone Season allowance allocation will be the 
lesserof:
    (i) The CAIR NOX Ozone Season opt-in unit's baselineheat 
input determined under Sec. 96.384(c); or
    (ii) The CAIR NOX Ozone Season opt-in unit's heatinput, 
as determined in accordance with subpart HHHH of this part, forthe 
immediately prior control period, except when the allocation isbeing 
calculated for the control period in which the CAIRNOX Ozone 
Season opt-in unit enters the CAIRNOX Ozone Season Trading 
Program underSec. 96.384(g).
    (2) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX Ozone Season allowance 
allocationswill be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 96.384(d) and multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period for which 
CAIRNOX Ozone Season allowances are to be allocated.
    (3) The permitting authority will allocate CAIR NOXOzone 
Season allowances to the CAIR NOX Ozone Season opt-in unit in 
an amount equaling the heat input under paragraph (b)(1) ofthis section, 
multiplied by the NOX emission rate underparagraph (b)(2) of 
this section, divided by 2,000 lb/ton, and roundedto the nearest whole 
allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit'' (based on a demonstration of 
theintent to repower stated under Sec. 96.383(a)(5)) providingfor, 
allocation to a CAIR NOX Ozone Season opt-in unit ofCAIR 
NOX Ozone Season allowances under this paragraph(subject to 
the conditions in Sec. Sec. 96.384(h) and96.386(g)), the permitting 
authority will allocate to the CAIRNOX Ozone Season opt-in 
unit as follows:
    (1) For each control period in 2009 through 2014 for which theCAIR 
NOX Ozone Season opt-in unit is to be allocated 
CAIRNOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRNOX Ozone Season

[[Page 853]]

allowance allocations will bedetermined as described in paragraph (b)(1) 
of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX Ozone Season allowance 
allocationswill be the lesser of:
    (A) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 96.384(d); or
    (B) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period in which the 
CAIRNOX Ozone Season opt-in unit enters the 
CAIRNOX Ozone Season Trading Program underSec. 96.384(g).
    (iii) The permitting authority will allocate CAIR 
NOXOzone Season allowances to the CAIR NOX Ozone 
Season opt-in unit in an amount equaling the heat input under paragraph 
(c)(1)(i)of this section, multiplied by the NOX emission rate 
underparagraph (c)(1)(ii) of this section, divided by 2,000 lb/ton, 
androunded to the nearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which theCAIR 
NOX Ozone Season opt-in unit is to be allocated 
CAIRNOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRNOX Ozone Season allowance allocations will be 
determinedas described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating the CAIR NOX Ozone Season allowance 
allocationwill be the lesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 96.384(d); or
    (C) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period for which 
CAIRNOX Ozone Season allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR 
NOXOzone Season allowances to the CAIR NOX Ozone 
Season opt-in unit in an amount equaling the heat input under paragraph 
(c)(2)(i)of this section, multiplied by the NOX emission rate 
underparagraph (c)(2)(ii) of this section, divided by 2,000 lb/ton, 
androunded to the nearest whole allowance as appropriate.
    (d) Recordation. (1) The Administrator will record, in thecompliance 
account of the source that includes the CAIRNOX Ozone Season 
opt-in unit, the CAIR NOXOzone Season allowances allocated by 
the permitting authority to theCAIR NOX Ozone Season opt-in 
unit under paragraph (a)(1)of this section.
    (2) By September 1, of the control period in which a 
CAIRNOX Ozone Season opt-in unit enters the 
CAIRNOX Ozone Season Trading Program underSec. 96.384(g), 
and September 1 of each year thereafter, theAdministrator will record, 
in the compliance account of the sourcethat includes the CAIR 
NOX Ozone Season opt-in unit, theCAIR NOX Ozone 
Season allowances allocated by thepermitting authority to the CAIR 
NOX Ozone Season opt-inunit under paragraph (a)(2) of this 
section.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25396, Apr.28, 2006]



PART 97_FEDERAL NOX BUDGET TRADINGPROGRAM AND CAIR NOX AND SO2 TRADING PROGRAMS--Table of Contents




         Subpart A_NOX Budget Trading Program GeneralProvisions

Sec.
97.1 Purpose.
97.2 Definitions.
97.3 Measurements, abbreviations, and acronyms.
97.4 Applicability.
97.5 Retired unit exemption.
97.6 Standard requirements.
97.7 Computation of time.

  Subpart B_NOX Authorized Account Representativefor NOX Budget Sources

97.10 Authorization and responsibilities of NOXauthorized 
          account representative.
97.11 Alternate NOX authorized accountrepresentative.
97.12 Changing NOX authorized accountrepresentative and 
          alternate NOX authorized accountrepresentative; 
          changes in owners and operators.
97.13 Account certificate of representation.
97.14 Objections concerning NOX authorizedaccount 
          representative.

[[Page 854]]

                            Subpart C_Permits

97.20 General NOX Budget Trading Program permitrequirements.
97.21 Submission of NOX Budget permitapplications.
97.22 Information requirements for NOX Budgetpermit 
          applications.
97.23 NOX Budget permit contents.
97.24 NOX Budget permit revisions.

                   Subpart D_Compliance Certification

97.30 Compliance certification report.
97.31 Administrator's action on compliance certifications.

                   Subpart E_NOX Allowance Allocations

97.40 Trading program budget.
97.41 Timing requirements for NOX allowanceallocations.
97.42 NOX allowance allocations.
97.43 Compliance supplement pool.

                 Subpart F_NOX Allowance Tracking System

97.50 NOX Allowance Tracking System accounts.
97.51 Establishment of accounts.
97.52 NOX Allowance Tracking Systemresponsibilities of 
          NOX authorized account representative.
97.53 Recordation of NOX allowance allocations.
97.54 Compliance.
97.55 Banking.
97.56 Account error.
97.57 Closing of general accounts.

                    Subpart G_NOX Allowance Transfers

97.60 Submission of NOX allowance transfers.
97.61 EPA recordation.
97.62 Notification.

                   Subpart H_Monitoring and Reporting

97.70 General requirements.
97.71 Initial certification and recertification procedures.
97.72 Out of control periods.
97.73 Notifications.
97.74 Recordkeeping and reporting.
97.75 Petitions.
97.76 Additional requirements to provide heat input data.

                    Subpart I_Individual Unit Opt-ins

97.80 Applicability.
97.81 General.
97.82 NOX authorized account representative.
97.83 Applying for NOX Budget opt-in permit.
97.84 Opt-in process.
97.85 NOX Budget opt-in permit contents.
97.86 Withdrawal from NOX Budget TradingProgram.
97.87 Change in regulatory status.
97.88 NOX allowance allocations to opt-in units.

                       Subpart J_Appeal Procedures

97.90 Appeal procedures.

      Subpart AA_CAIR NOX Annual Trading ProgramGeneral Provisions

97.101 Purpose.
97.102 Definitions.
97.103 Measurements, abbreviations, and acronyms.
97.104 Applicability.
97.105 Retired unit exemption.
97.106 Standard requirements.
97.107 Computation of time.
97.108 Appeal procedures.

      Subpart BB_CAIR Designated Representative for CAIRNOX Sources

97.110 Authorization and responsibilities of CAIRdesignated 
          representative.
97.111 Alternate CAIR designated representative.
97.112 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
97.113 Certificate of representation.
97.114 Objections concerning CAIR designated representative.
97.115 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                           Subpart CC_Permits

97.120 General CAIR NOX Annual Trading Programpermit 
          requirements.
97.121 Submission of CAIR permit applications.
97.122 Information requirements for CAIR permitapplications.
97.123 CAIR permit contents and term.
97.124 CAIR permit revisions.

Subpart DD [Reserved]

                Subpart EE_CAIR NOX Allowance Allocations

97.140 State trading budgets.
97.141 Timing requirements for CAIR NOXallowance allocations.
97.142 CAIR NOX allowance allocations.
97.143 Compliance supplement pool.
97.144 Alternative of allocation of CAIR NOXallowances and 
          compliance supplement pool by permitting authority.

[[Page 855]]


Appendix A to Subpart EE of Part 97--States WithApproved State 
          Implementation Plan Revisions Concerning Allocations

             Subpart FF_ CAIR NOX Allowance Tracking System

97.150 [Reserved]
97.151 Establishment of accounts.
97.152 Responsibilities of CAIR authorized accountrepresentative.
97.153 Recordation of CAIR NOX allowanceallocations.
97.154 Compliance with CAIR NOX emissionslimitation.
97.155 Banking.
97.156 Account error.
97.157 Closing of general accounts.

                 Subpart GG_CAIR NOX Allowance Transfers

97.160 Submission of CAIR NOX allowancetransfers.
97.161 EPA recordation.
97.162 Notification.

                   Subpart HH_Monitoring and Reporting

97.170 General requirements.
97.171 Initial certification and recertification procedures.
97.172 Out of control periods.
97.173 Notifications.
97.174 Recordkeeping and reporting.
97.175 Petitions.

                    Subpart II_CAIR NOX Opt-in Units

97.180 Applicability.
97.181 General.
97.182 CAIR designated representative.
97.183 Applying for CAIR opt-in permit.
97.184 Opt-in process.
97.185 CAIR opt-in permit contents.
97.186 Withdrawal from CAIR NOX Annual TradingProgram.
97.187 Change in regulatory status.
97.188 CAIR NOX allowance allocations to CAIRNOX 
          opt-in units.

Appendix A to Subpart II of Part 97--States WithApproved State 
          Implementation Plan Revisions Concerning CAIRNOX 
          Opt-in Units

         Subpart AAA_CAIR SO2 Trading Program GeneralProvisions

97.201 Purpose.
97.202 Definitions.
97.203 Measurements, abbreviations, and acronyms.
97.204 Applicability.
97.205 Retired unit exemption.
97.206 Standard requirements.
97.207 Computation of time.
97.208 Appeal procedures.

     Subpart BBB_CAIR Designated Representative for CAIRSO2 Sources

97.210 Authorization and responsibilities of CAIR 
          designatedrepresentative.
97.211 Alternate CAIR designated representative.
97.212 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
97.213 Certificate of representation.
97.214 Objections concerning CAIR designated representative.
97.215 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                           Subpart CCC_Permits

97.220 General CAIR SO2 Trading Program permitrequirements.
97.221 Submission of CAIR permit applications.
97.222 Information requirements for CAIR permitapplications.
97.223 CAIR permit contents and term.
97.224 CAIR permit revisions.

Subparts DDD--EEE [Reserved]

              Subpart FFF_CAIR SO2 Allowance TrackingSystem

97.250 [Reserved]
97.251 Establishment of accounts.
97.252 Responsibilities of CAIR authorized accountrepresentative.
97.253 Recordation of CAIR SO2 allowances.
97.254 Compliance with CAIR SO2 emissionslimitation.
97.255 Banking.
97.256 Account error.
97.257 Closing of general accounts.

                Subpart GGG_CAIR SO2 Allowance Transfers

97.260 Submission of CAIR SO2 allowancetransfers.
97.261 EPA recordation.
97.262 Notification.

                  Subpart HHH_Monitoring and Reporting

97.270 General requirements.
97.271 Initial certification and recertification procedures.
97.272 Out of control periods.
97.273 Notifications.
97.274 Recordkeeping and reporting.
97.275 Petitions.

                    Subpart III_CAIR SO2 Opt-in Units

97.280 Applicability.

[[Page 856]]

97.281 General.
97.282 CAIR designated representative.
97.283 Applying for CAIR opt-in permit.
97.284 Opt-in process.
97.285 CAIR opt-in permit contents.
97.286 Withdrawal from CAIR SO2 Trading Program.
97.287 Change in regulatory status.
97.288 CAIR SO2 allowance allocations to CAIRSO2 
          opt-in units.

Appendix A to Subpart III of Part 97--States WithApproved State 
          Implementation Plan Revisions Concerning CAIRSO2 
          Opt-In Units

  Subpart AAAA_CAIR NOX Ozone Season TradingProgram General Provisions

97.301 Purpose.
97.302 Definitions.
97.303 Measurements, abbreviations, and acronyms.
97.304 Applicability.
97.305 Retired unit exemption.
97.306 Standard requirements.
97.307 Computation of time.
97.308 Appeal procedures.

Appendix A to Subpart AAAA of Part 97--States WithApproved State 
          Implementation Plan Revisions Concerning Applicability

  Subpart BBBB_CAIR Designated Representative for CAIRNOX Ozone Season 
                                 Sources

97.310 Authorization and responsibilities of CAIR 
          designatedrepresentative.
97.311 Alternate CAIR designated representative.
97.312 Changing CAIR designated representative and alternateCAIR 
          designated representative; changes in owners and operators.
97.313 Certificate of representation.
97.314 Objections concerning CAIR designated representative.
97.315 Delegation by CAIR designated representative andalternate CAIR 
          designated representative.

                          Subpart CCCC_Permits

97.320 General CAIR NOX Ozone Season TradingProgram permit 
          requirements.
97.321 Submission of CAIR permit applications.
97.322 Information requirements for CAIR permitapplications.
97.323 CAIR permit contents and term.
97.324 CAIR permit revisions.

Subpart DDDD [Reserved]

         Subpart EEEE_CAIR NOX Ozone SeasonAllowance Allocations

97.340 State trading budgets.
97.341 Timing requirements for CAIR NOX OzoneSeason allowance 
          allocations.
97.342 CAIR NOX Ozone Season allowanceallocations.
97.343 Alternative of allocation of CAIR NOXOzone Season 
          allowances by permitting authority.

    Appendix A to Subpart EEEE of Part 97--States With ApprovedState 
          Implementation Plan Revisions Concerning Allocations

       Subpart FFFF_CAIR NOX Ozone Season AllowanceTracking System

97.350 [Reserved]
97.351 Establishment of accounts.
97.352 Responsibilities of CAIR authorized accountrepresentative.
97.353 Recordation of CAIR NOX Ozone Seasonallowance 
          allocations.
97.354 Compliance with CAIR NOX emissionslimitation.
97.355 Banking.
97.356 Account error.
97.357 Closing of general accounts.

          Subpart GGGG_CAIR NOX Ozone Season AllowanceTransfers

97.360 Submission of CAIR NOX Ozone Seasonallowance 
          transfers.
97.361 EPA recordation.
97.362 Notification.

                  Subpart HHHH_Monitoring and Reporting

97.370 General requirements.
97.371 Initial certification and recertification procedures.
97.372 Out of control periods.
97.373 Notifications.
97.374 Recordkeeping and reporting.
97.375 Petitions.

             Subpart IIII_CAIR NOX Ozone Season Opt-in Units

97.380 Applicability.
97.381 General.
97.382 CAIR designated representative.
97.383 Applying for CAIR opt-in permit.
97.384 Opt-in process.
97.385 CAIR opt-in permit contents.
97.386 Withdrawal from CAIR NOX Ozone SeasonTrading Program.
97.387 Change in regulatory status.
97.388 CAIR NOX Ozone Season allowanceallocations to CAIR 
          NOX Ozone Season opt-in units.

[[Page 857]]


Appendix A to Subpart IIII of Part 97--StatesWith Approved State 
          Implementation Plan Revisions Concerning CAIRNOX 
          Ozone Season Opt-In Units
Appendix A to Part 97--Final Section 126 Rule: EGUAllocations, 2003-2007
Appendix B to Part 97--Final Section 126 Rule: Non-EGUAllocations, 2003-
          2007
Appendix C to Part 97--Final Section 126 Rule: TradingBudget, 2003-2007
Appendix D to Part 97--Final Section 126 Rule: StateCompliance 
          Supplement Pools for the Section 126 Final Rule (Tons)

    Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and7651, et seq.

    Source: 65 FR 2727, Jan. 18, 2000, unless otherwisenoted. 71 FR 
25396, 25422, and 25443, Apr. 28, 2006



         Subpart A_NOX Budget Trading Program GeneralProvisions



Sec. 97.1  Purpose.

    This part establishes general provisions and the 
applicability,permitting, allowance, excess emissions, monitoring, and 
opt-inprovisions for the federal NOX Budget Trading 
Program,under section 126 of the CAA and Sec. 52.34 of this chapter,as 
a means of mitigating the interstate transport of ozone andnitrogen 
oxides, an ozone precursor.



Sec. 97.2  Definitions.

    The terms used in this part shall have the meanings set forth inthis 
section as follows:
    Account number means the identification number given by 
theAdministrator to each NOX Allowance Tracking 
Systemaccount.
    Acid Rain emissions limitation means, as defined inSec. 72.2 of 
this chapter, a limitation on emissions ofsulfur dioxide or nitrogen 
oxides under the Acid Rain Program undertitle IV of the Clean Air Act.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard toNOX 
allowances, the determination by the Administrator ofthe number of 
NOX allowances to be initially credited to aNOX 
Budget unit or an allocation set-aside.
    Automated data acquisition and handling system or DAHSmeans that 
component of the CEMS, or other emissions monitoring systemapproved for 
use under subpart H of this part, designed to interpretand convert 
individual output signals from pollutant concentrationmonitors, flow 
monitors, diluent gas monitors, and other componentparts of the 
monitoring system to produce a continuous record of themeasured 
parameters in the measurement units required by subpart H ofthis part.
    Boiler means an enclosed fossil or other fuel-firedcombustion device 
used to produce heat and to transfer heat torecirculating water, steam, 
or other medium.
    Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 etseq.
    Combined cycle system means a system comprised of one ormore 
combustion turbines, heat recovery steam generators, and steamturbines 
configured to improve overall efficiency of electricitygeneration or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and aturbine, and 
in which the flue gas resulting from the combustion offuel in the 
combustor passes through the turbine, rotating theturbine.
    Commence commercial operation means, with regard to a unitthat 
serves a generator, to have begun to produce steam, gas, or otherheated 
medium used to generate electricity for sale or use, includingtest 
generation. Except as provided in Sec. 97.4(b),Sec. 97.5, or subpart I 
of this part, for a unit that is aNOX Budget unit under Sec. 
97.4(a) on the datethe unit commences commercial operation, such date 
shall remain theunit's date of commencement of commercial operation even 
if the unitis subsequently modified, reconstructed, or repowered. Except 
asprovided in Sec. 97.4(b), Sec. 97.5, or subpart Iof this part, for a 
unit that is not a NOX Budget unitunder Sec. 97.4(a) on the 
date the unit commences commercialoperation, the date the unit becomes a 
NOX Budget unitunder Sec. 97.4(a) shall be the unit's date 
of commencementof commercial operation.
    Commence operation means to have begun any mechanical,chemical, or

[[Page 858]]

electronic process, including, with regard to aunit, start-up of a 
unit's combustion chamber. Except as provided inSec. 97.4(b), Sec. 
97.5, or subpart I of this partfor a unit that is a NOX 
Budget unit underSec. 97.4(a) on the date of commencement of operation, 
suchdate shall remain the unit's date of commencement of operation even 
ifthe unit is subsequently modified, reconstructed, or repowered. 
Exceptas provided in Sec. 97.4(b), Sec. 97.5, or subpartI of this 
part, for a unit that is not a NOX Budget unitunder Sec. 
97.4(a) on the date of commencement of operation,the date the unit 
becomes a NOX Budget unit underSec. 97.4(a) shall be the 
unit's date of commencement ofoperation.
    Common stack means a single flue through which emissionsfrom two or 
more units are exhausted.
    Compliance account means a NOX AllowanceTracking System 
account, established by the Administrator for aNOX Budget 
unit under subpart F of this part, in which theNOX allowance 
allocations for the unit are initiallyrecorded and in which are held 
NOX allowances availablefor use by the unit for a control 
period for the purpose of meetingthe unit's NOX Budget 
emissions limitation.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart H of this part to sample,analyze, measure, and 
provide, by means of readings taken at leastonce every 15 minutes (using 
an automated data acquisition andhandling system (DAHS)), a permanent 
record of nitrogen oxides(NOX) emissions, stack gas 
volumetric flow rate or stackgas moisture content (as applicable), in a 
manner consistent with part75 of this chapter. The following are the 
principal types ofcontinuous emission monitoring systems required under 
subpart H ofthis part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated DAHS. A flow monitoring system provides apermanent, 
continuous record of stack gas volumetric flow rate, inunits of standard 
cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consistingof 
a NOX pollutant concentration monitor and an automatedDAHS. A 
NOX concentration monitoring system provides apermanent, 
continuous record of NOX emissions in units ofparts per 
million (ppm);
    (3) A nitrogen oxides emission rate (or NOX-
diluent)monitoring system, consisting of a NOX 
pollutantconcentration monitor, a diluent gas (CO2 
orO2) monitor, and an automated DAHS. A 
NOXconcentration monitoring system provides a permanent, 
continuousrecord of: NOX concentration in units of parts per 
million(ppm), diluent gas concentration in units of percent 
O2 orCO2 (percent O2 or 
CO2), andNOX emission rate in units of pounds per 
million Britishthermal units (lb/mmBtu); and
    (4) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter. A moisture monitoringsystem provides a permanent, 
continuous record of the stack gasmoisture content, in units of percent 
H2O (percentH2O).
    Control period means the period beginning May 1 of a yearand ending 
on September 30 of the same year, inclusive.
    Electricity for sale under firm contract to the grid 
meanselectricity for sale where the capacity involved is intended to 
beavailable at all times during the period covered by a 
guaranteedcommitment to deliver, even under adverse conditions.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the NOX authorized account representativeand as determined 
by the Administrator in accordance with subpart H ofthis part.
    Energy Information Administration means the EnergyInformation 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxidesemitted by a 
NOX Budget unit during a control period thatexceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil fuel fired means, with regard to a unit:

[[Page 859]]

    (1) For units that commenced operation before January 1,1996, the 
combustion of fossil fuel, alone or in combination with anyother fuel, 
where fossil fuel actually combusted comprises more than50 percent of 
the annual heat input on a Btu basis during 1995, or, ifa unit had no 
heat input in 1995, during the last year of operation ofthe unit prior 
to 1995;
    (2) For units that commenced operation on or after January 1, 
1996and before January 1, 1997, the combustion of fossil fuel, alone or 
incombination with any other fuel, where fossil fuel actually 
combustedcomprises more than 50 percent of the annual heat input on a 
Btu basisduring 1996; or
    (3) For units that commence operation on or after January 1, 1997:
    (i) The combination of fossil fuel, alone or in combustion withany 
other fuel, where fossil fuel actually combusted comprises morethan 50 
percent of the annual heat input on a Btu basis during anyyear; or
    (ii) The combination of fossil fuel, alone or in combination withany 
other fuel, where fossil fuel is projected to comprise more than50 
percent of the annual heat input on a Btu basis during any year,provided 
that the unit shall be ``fossil fuel-fired'' asof the date, during such 
year, on which the unit begins combustingfossil fuel.
    General account means a NOX Allowance TrackingSystem 
account, established under subpart F of this part, that is nota 
compliance account or an overdraft account.
    Generator means a device that produces electricity.
    Heat input means, with regard to a specified period to time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the NOXauthorized account 
representative and as determined by theAdministrator in accordance with 
subpart H of this part. Heat inputdoes not include the heat derived from 
preheated combustion air,recirculated flue gases, or exhaust from other 
sources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energy fromany specified 
unit and pays its proportional amount of such unit'stotal costs, 
pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period equal to or greater than 25 years or 70 percentof 
the economic useful life of the unit determined as of the time theunit 
is built, with option rights to purchase or release some portionof the 
nameplate capacity and associated energy generated by the unitat the end 
of the period.
    Maximum design heat input means the ability of a unit tocombust a 
stated maximum amount of fuel per hour (in mmBtu/hr) on asteady state 
basis, as determined by the physical design and physicalcharacteristics 
of the unit.
    Maximum potential hourly heat input means an hourly heatinput (in 
mmBtu/hr) used for reporting purposes when a unit lackscertified 
monitors to report heat input. If the unit intends to useappendix D of 
part 75 of this chapter to report heat input, this valueshould be 
calculated, in accordance with part 75 of this chapter,using the maximum 
fuel flow rate and the maximum gross calorificvalue. If the unit intends 
to use a flow monitor and a diluent gasmonitor, this value should be 
reported, in accordance with part 75 ofthis chapter, using the maximum 
potential flowrate and either themaximum carbon dioxide concentration 
(in percent CO2) orthe minimum oxygen concentration (in 
percent O2).
    Maximum potential NOX emission rate meansthe emission rate of 
nitrogen

[[Page 860]]

oxides (in lb/mmBtu) calculated inaccordance with section 3 of appendix 
F of part 75 of this chapter,using the maximum potential concentration 
of NOX undersection 2 of appendix A of part 75 of this 
chapter, and either themaximum oxygen concentration (in percent O2) or 
the minimum carbondioxide concentration (in percent CO2), 
under alloperating conditions of the unit except for unit start up, 
shutdown,and upsets.
    Maximum rated hourly heat input means a unit specificmaximum hourly 
heat input (in mmBtu/hr) which is the higher of themanufacturer's 
maximum rated hourly heat input or the highest observedhourly heat 
input.
    Monitoring system means any monitoring system that meets 
therequirements of subpart H of this part, including a 
continuousemissions monitoring system, an excepted monitoring system, or 
analternative monitoring system.
    Most stringent State or Federal NOX emissionslimitation means the 
lowest NOX emissions limitation(in lb/mmBtu) that is 
applicable to the unit under State or Federallaw, regardless of the 
averaging period to which the emissionslimitation applies.
    Nameplate capacity means the maximum electrical generatingoutput (in 
MWe) that a generator can sustain over a specified periodof time when 
not restricted by seasonal or other deratings as measuredin accordance 
with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permitadministered 
by the permitting authority pursuant to the Clean Air Actand regulatory 
authority under the Clean Air Act, other than title Vof the Clean Air 
Act and part 70 or 71 of this chapter.
    NOX allowance means a limitedauthorization by the Administrator 
under the NOX BudgetTrading Program to emit up to one ton of 
nitrogen oxides during thecontrol period of the specified year or of any 
year thereafter, exceptas provided under Sec. 97.54(f). No provision of 
theNOX Budget Trading Program, the NOX 
Budgetpermit application, the NOX Budget permit, or an 
exemptionunder Sec. 97.4(b) or Sec. 97.5 and no provisionof law shall 
be construed to limit the authority of the United Statesto terminate or 
limit such authorization, which does not constitute aproperty right. For 
purposes of all sections of this part exceptSec. 97.40, Sec. 97.41, 
Sec. 97.42,Sec. 97.43, or Sec. 97.88, ``NOXallowance'' 
also includes an authorization to emit up to one tonof nitrogen oxides 
during the control period of the specified year orof any year thereafter 
by the permitting authority or theAdministrator in accordance with a 
State NOX BudgetTrading Program established, and approved and 
administered by theAdministrator, pursuant to Sec. 51.121 of this 
chapter.
    NOX allowance deduction or deductNOX allowances means the permanent 
withdrawal ofNOX allowances by the Administrator from a 
NOXAllowance Tracking System compliance account or overdraft 
account toaccount for the number of tons of NOX emissions 
from aNOX Budget unit for a control period, determined 
inaccordance with subparts H and F of this part, or for any 
otherNOX allowance withdrawal requirement under this part.
    NOX Allowance Tracking System means thesystem by which the 
Administrator records allocations, deductions, andtransfers of 
NOX allowances under the NOXBudget Trading 
Program.
    NOX Allowance Tracking System accountmeans an account in the 
NOX Allowance Tracking Systemestablished by the Administrator 
for purposes of recording theallocation, holding, transferring, or 
deducting of NOXallowances.
    NOX allowance transfer deadline meansmidnight of November 30 or, if 
November 30 is not a business day,midnight of the first business day 
thereafter and is the deadline bywhich NOX allowances must be 
submitted for recordation ina NOX Budget unit's compliance 
account, or the overdraftaccount of the source where the unit is 
located, in order to meet theunit's NOX Budget emissions 
limitation for the controlperiod immediately preceding such deadline.
    NOX allowances held or holdNOX allowances means the 
NOXallowances recorded by the Administrator, or submitted to 
theAdministrator for recordation, in accordance with subparts

[[Page 861]]

F andG of this part, in a NOX Allowance Tracking 
Systemaccount.
    NOX authorized account representativemeans, for a NOX 
Budget source or NOX Budgetunit at the source, the natural 
person who is authorized by the ownersand operators of the source and 
all NOX Budget units atthe source, in accordance with subpart 
B of this part, to representand legally bind each owner and operator in 
matters pertaining to theNOX Budget Trading Program or, for a 
general account, thenatural person who is authorized, in accordance with 
subpart F of thispart, to transfer or otherwise dispose of 
NOX allowancesheld in the general account.
    NOX Budget emissions limitation means, fora NOX Budget 
unit, the tonnage equivalent of theNOX allowances available 
for compliance deduction for theunit under Sec. 97.54(a), (b), (e), and 
(f) in a controlperiod adjusted by deductions of such NOX 
allowances toaccount for actual heat input under Sec. 97.42(e) for 
thecontrol period or to account for excess emissions for a prior 
controlperiod under Sec. 97.54(d) or to account for withdrawal fromthe 
NOX Budget Trading Program, or for a change inregulatory 
status, of a NOX Budget opt-in unit underSec. 97.86 or Sec. 
97.87.
    NOX Budget opt-in permit means aNOX Budget permit 
covering a NOX Budget opt-inunit.
    NOX Budget opt-in unit means a unit thathas been elected to become a 
NOX Budget unit under theNOX Budget Trading 
Program and whose NOXBudget opt-in permit has been issued and 
is in effect under subpart Iof this part.
    NOX Budget permit means the legallybinding and federally enforceable 
written document, or portion of suchdocument, issued by the permitting 
authority under this part,including any permit revisions, specifying the 
NOX BudgetTrading Program requirements applicable to a 
NOX Budgetsource, to each NOX Budget unit at the 
NOXBudget source, and to the owners and operators and the 
NOXauthorized account representative of the NOX 
Budget sourceand each NOX Budget unit.
    NOX Budget source means a source thatincludes one or more 
NOX Budget units.
    NOX Budget Trading Program means amultistate nitrogen oxides air 
pollution control and emissionreduction program established by the 
Administrator in accordance withthis part and pursuant to Sec. 52.34 of 
this chapter, as ameans of mitigating the interstate transport of ozone 
and nitrogenoxides, an ozone precursor.
    NOX Budget unit means a unit that issubject to the NOX 
Budget emissions limitation underSec. 97.4(a) or Sec. 97.80.
    Operating means, with regard to a unit underSec. Sec. 97.22(d)(2) 
and 97.80, having documented heatinput for more than 876 hours in the 6 
months immediately precedingthe submission of an application for an 
initial NOX Budgetpermit under Sec. 97.83(a). The unit's 
documented heat inputwill be determined in accordance with part 75 of 
this chapter if theunit was otherwise subject to the requirements of 
part 75 of thischapter during that 6-month period or will be based on 
the bestavailable data reported to the Administrator for the unit if the 
unitwas not otherwise subject to the requirements of part 75 of 
thischapter during that 6-month period.
    Operator means any person who operates, controls, orsupervises a 
NOX Budget unit, a NOX Budgetsource, or a unit for 
which an application for a NOXBudget opt-in permit under 
Sec. 97.83 is submitted and notdenied or withdrawn and shall include, 
but not be limited to, anyholding company, utility system, or plant 
manager of such a unit orsource.
    Opt-in means to be elected to become a NOXBudget unit 
under the NOX Budget Trading Program through afinal, 
effective NOX Budget opt-in permit under subpart Iof this 
part.
    Overdraft account means the NOX AllowanceTracking System 
account, established by the Administrator undersubpart F of this part, 
for each NOX Budget source wherethere are two or more 
NOX Budget units.
    Owner means any of the following persons:
    (1) Any holder of any portion of the legal or equitable title in 
aNOX Budget unit or in a unit for which an application fora 
NOX Budget opt-in permit under Sec. 97.83 issubmitted and 
not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX 
Budgetunit or in a unit for

[[Page 862]]

which an application for a NOXBudget opt-in permit under 
Sec. 97.83 is submitted and notdenied or withdrawn; or
    (3) Any purchaser of power from a NOX Budget unit orfrom 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 97.83 is submitted and not denied orwithdrawn under a 
life-of-the-unit, firm power contractualarrangement. However, unless 
expressly provided for in a leaseholdagreement, owner shall not include 
a passive lessor, or a person whohas an equitable interest through such 
lessor, whose rental paymentsare not based, either directly or 
indirectly, upon the revenues orincome from the NOX Budget 
unit or the unit for which anapplication for a NOX Budget 
opt-in permit underSec. 97.83 is submitted and not denied or withdrawn; 
or
    (4) With respect to any general account, any person who has 
anownership interest with respect to the NOX allowances 
heldin the general account and who is subject to the binding agreement 
forthe NOX authorized account representative to representthat 
person's ownership interest with respect to the 
NOXallowances.
    Percent monitor data availability means, for purposes ofSec. 97.43 
(a)(1) and Sec. 97.84(b), total unitoperating hours for which quality-
assured data were recorded undersubpart H of this part in a control 
period, divided by the totalnumber of unit operating hours in the 
control period, and multipliedby 100 percent.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
NOX Budget Trading Program inaccordance with subpart C of 
this part.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in writing orby authorized 
electronic transmission), as indicated in an officialcorrespondence log, 
or by a notation made on the document,information, or correspondence, by 
the permitting authority or theAdministrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard toNOX 
allowances, the movement of NOX allowancesby the 
Administrator from one NOX Allowance TrackingSystem account 
to another, for purposes of allocation, transfer, ordeduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified in appendix A of part60 of 
this chapter.
    Serial number means, when referring to NOXallowances, the 
unique identification number assigned to eachNOX allowance by 
the Administrator, underSec. 97.53(c).
    Source means any governmental, institutional, commercial, 
orindustrial structure, installation, plant, building, or facility 
thatemits or has the potential to emit any regulated air pollutant 
underthe Clean Air Act. For purposes of section 502(c) of the Clean 
AirAct, a ``source,'' including a ``source'' withmultiple units, shall 
be considered a single ``facility.''
    State means one of the 48 contiguous States or a portionthereof or 
the District of Columbia that is specified inSec. 52.34 of this chapter 
and in which are located unitsfor which the Administrator makes an 
effective finding underSec. 52.34 of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission,''``service,'' or ``mailing'' 
deadline shall bedetermined by the date of dispatch, transmission, or 
mailing and notthe date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of

[[Page 863]]

the Clean Air Act and part 70 or 71 ofthis chapter.
    Ton or tonnage means any ``short ton''(i.e., 2,000 pounds). For the 
purpose of determining compliance withthe NOX Budget 
emissions limitation, total tons for acontrol period shall be calculated 
as the sum of all recorded hourlyemissions (or the tonnage equivalent of 
the recorded hourly emissionsrates) in accordance with subpart H of this 
part, with any remainingfraction of a ton equal to or greater than 0.50 
ton deemed to equalone ton and any fraction of a ton less than 0.50 ton 
deemed to equalzero tons.
    Unit means a fossil fuel-fired stationary boiler, combustionturbine, 
or combined cycle system.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation meansany hour (or 
fraction of an hour) during which a unit combusts anyfuel.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21645, Apr.21, 2004]



Sec. 97.3  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this part 
aredefined as follows:

Btu-British thermal unit.
CO2-carbon dioxide.
hr-hour.
kW-kilowatt electrical.
kWh-kilowatt hour.
lb-pounds.
mmBtu-million Btu.
MWe-megawatt electrical.
NOX-nitrogen oxides.
O2-oxygen.
ton-2000 pounds.



Sec. 97.4  Applicability.

    (a) The following units in a State shall be a NOXBudget 
unit, and any source that includes one or more such units shallbe a 
NOX Budget source, subject to the requirements ofthis part:
    (1)(i) For units other than cogeneration units--
    (A) For units commencing operation before January 1, 1997, a 
unitserving during 1995 or 1996 a generator--
    (1) With a nameplate capacity greater than 25 MWe and
    (2) Producing electricity for sale under a firm contract tothe 
electric grid.
    (B) For units commencing operation in 1997 or 1998, a unit 
servingduring 1997 or 1998 a generator--
    (1) With a nameplate capacity greater than 25 MWe and
    (2) Producing electricity for sale under a firm contract tothe 
electric grid.
    (C) For units commencing operation on or after January 1, 1999, 
aunit serving at any time a generator--
    (1) With a nameplate capacity greater than 25 MWe and
    (2) Producing electricity for sale.
    (ii) For cogeneration units--
    (A) For units commencing operation before January 1, 1997, a 
unitserving during 1995 or 1996 a generator with a nameplate 
capacitygreater than 25 MWe and failing to qualify as an unaffected unit 
underSec. 72.6(b)(4) of this chapter for 1995 or 1996 under theAcid 
Rain Program.
    (B) For units commencing operation in 1997 or 1998, a unit 
servingduring 1997 or 1998 a generator with a nameplate capacity grater 
than25 MWe and failing to qualify as an unaffected unit underSec. 
72.6(b)(4) of this chapter for 1997 or 1998 under theAcid Rain Program.
    (C) For units commencing operation on or after January 1, 1999, 
aunit serving at any time a generator with a nameplate capacity 
greaterthan 25 MWe and failing to qualify as an unaffected unit 
underSec. 72.6(b)(4) of this chapter under the Acid Rain Programfor any 
year.
    (2)(i) For units other than cogeneration units--
    (A) For units commencing operation before January 1, 1997, aunit--
    (1) With a maximum design heat input greater than 250mmBtu/hr and
    (2) Not serving during 1995 or 1996 a generator producingelectricity 
for sale under a firm contract to the electric grid.
    (B) For units commencing operation in 1997 or 1998, a unit--
    (1) With a maximum design heat input greater than 250mmBtu/hr and
    (2) Not serving during 1997 or 1998 a generator producingelectricity 
for sale under a firm contract to the electric grid.

[[Page 864]]

    (C) For units commencing on or after January 1, 1999, a unitwith a 
maximum design heat input greater than 250 mmBtu/hr:
    (1) At no time serving a generator producing electricity forsale; or
    (2) At any time serving a generator with a nameplatecapacity of 25 
MWe or less producing electricity for sale and with thepotential to use 
no more than 50 percent of the potential electricaloutput capacity of 
the unit.
    (ii) For cogeneration units--
    (A) For units commencing operation before January 1, 1997, a 
unitwith a maximum design heat input greater than 250 mmBtu/hr 
andqualifying as an unaffected unit under Sec. 72.6(b)(4) ofthis 
chapter under the Acid Rain Program for 1995 and 1996.
    (B) For units commencing operation in 1997 or 1998, a unit with 
amaximum design heat input greater than 250 mmBtu/hr and qualifying asan 
unaffected unit under Sec. 72.6(b)(4) under the Acid RainProgram for 
1997 and 1998.
    (C) For units commencing on or after January 1, 1999, a unit witha 
maximum design heat input greater than 250 mmBtu/hr and qualifyingas an 
unaffected unit under Sec. 72.6(b)(4) of this chapterunder the Acid 
Rain Program for each year.
    (b)(1) Notwithstanding paragraph (a) of this section, a unit 
underparagraph (a)(1) or (a)(2) of this section that has a 
federallyenforceable permit that restricts the unit to combusting only 
naturalgas or fuel oil (as defined in Sec. 75.2 of this chapter)during 
a control period includes a NOX emission 
limitationrestricting NOX emissions during a control period 
to 25tons or less, and includes the special provisions in paragraph 
(b)(4)of this section shall be exempt from the requirements of 
theNOX Budget Trading Program, except for the provisions 
ofthis paragraph (b), Sec. 97.2, Sec. 97.3,Sec. 97.4(a), Sec. 97.7, 
and subparts E, F, and Gof this part. The NOX emission 
limitation under thisparagraph (b)(1) shall restrict NOX 
emissions during thecontrol period by limiting unit operating hours. The 
restriction onunit operating hours shall be calculated by dividing 25 
tons by theunit's maximum potential hourly NOX mass 
emissions, whichshall equal the unit's maximum rated hourly heat input 
multiplied bythe highest default NOX emission rate otherwise 
applicableto the unit under Sec. 75.19 of this chapter.
    (2) The exemption under paragraph (b)(1) of this section shallbecome 
effective as follows:
    (i) The exemption shall become effective on the date on which 
theNOX emission limitation and the special provisions in 
thepermit under paragraph (b)(1) of this section become final; or
    (ii) If the NOX emission limitation and the 
specialprovisions in the permit under paragraph (b)(1) of this section 
becomefinal during a control period and after the first date on which 
theunit operates during such control period, then the exemption 
shallbecome effective on May 1 of such control period, provided that 
suchNOX emission limitation and the special provisions 
applyto the unit as of such first date of operation. If 
suchNOX emission limitation and special provisions do 
notapply to the unit as of such first date of operation, then 
theexemption under paragraph (b)(1) of this section shall 
becomeeffective on October 1 of the year during which such 
NOXemission limitation and the special provisions become 
final.
    (3) The permitting authority that issues a federally 
enforceablepermit under paragraph (b)(1) of this section for a unit 
underparagraph (a)(1) or (a)(2) of this section will provide 
theAdministrator written notice of the issuance of such permit and, 
uponrequest, a copy of the permit.
    (4) Special provisions. (i) A unit exempt under paragraph(b)(1) of 
this section shall comply with the restriction on fuel useand unit 
operating hours described in paragraph (b)(1) of this sectionduring the 
control period in each year.
    (ii) The Administrator will allocate NOX allowances tothe 
unit under Sec. Sec. 97.41(a) through (c) and 97.42(a)through (c). For 
each control period for which the unit is allocatedNOX 
allowances under Sec. Sec. 97.41(a)through (c) and 97.42(a) through 
(c):
    (A) The owners and operators of the unit must specify a 
generalaccount, in which the Administrator will record the 
NOXallowances; and

[[Page 865]]

    (B) After the Administrator records a NOXallowance 
allocations under Sec. Sec. 97.41(a) through (c)and 97.42(a) through 
(c), the Administrator will deduct, from thegeneral account under 
paragraph (b)(4)(ii)(A) of this section,NOX allowances that 
are allocated for the same or a priorcontrol period as the 
NOX allowances allocated to the unitunder Sec. Sec. 97.41(a) 
through (c) and 97.42(a) through(c) and that equal the NOX 
emission limitation (in tons ofNOX) on which the unit's 
exemption under paragraph (b)(1)of this section is based. The 
NOX authorized accountrepresentative shall ensure that such 
general account contains theNOX allowances necessary for 
completion of such deduction.
    (iii) A unit exempt under this paragraph (b) shall report hours 
ofunit operation during the control period in each year to thepermitting 
authority by November 1 of that year.
    (iv) For a period of 5 years from the date the records arecreated, 
the owners and operators of a unit exempt under paragraph (b)(1) of this 
section shall retain, at the source that includes theunit, records 
demonstrating that the conditions of the federallyenforceable permit 
under paragraph (b)(1) of this section were met,including the 
restriction on fuel use or unit operating hours. The 5-year period for 
keeping records may be extended for cause, at any timeprior to the end 
of the period, in writing by the permitting authorityor the 
Administrator. The owners and operators bear the burden ofproof that the 
unit met the restriction on fuel use or unit operatinghours.
    (v) The owners and operators and, to the extent applicable, 
theNOX authorized account representative of a unit 
exemptunder paragraph (b)(1) of this section shall comply with 
therequirements of the NOX Budget Trading Program 
concerningall periods for which the exemption is not in effect, even if 
suchrequirements arise, or must be complied with, after the 
exemptiontakes effect.
    (vi) On the earlier of the following dates, a unit exempt 
underparagraph (b)(1) of this section shall lose its exemption:
    (A) The date on which the restriction on fuel use or unitoperating 
hours described in paragraph (b)(1) of this section isremoved from the 
unit's federally enforceable permit or otherwisebecomes no longer 
applicable to any control period starting in 2004;or
    (B) The first date on which the unit fails to comply, or withregard 
to which the owners and operators fail to meet their burden ofproving 
that the unit is complying, with the restriction on fuel useor unit 
operating hours described in paragraph (b)(1) of this sectionduring any 
control period starting in 2004.
    (vii) A unit that loses its exemption in accordance with 
paragraph(b)(4)(vi) of this section shall be subject to the requirements 
ofthis part. For the purpose of applying permitting requirements 
undersubpart C of this part, allocating allowances under subpart E of 
thispart, and applying monitoring requirements under subpart H of 
thispart, the unit shall be treated as commencing operation and, if 
theunit is covered by paragraph (a)(1) of this section, 
commencingcommercial operation on the date the unit loses its exemption.
    (viii) A unit that is exempt under paragraph (b)(1) of thissection 
is not eligible to be a NOX Budget opt-in unitunder subpart I 
of this part.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002; 69 
FR 21645, Apr. 21, 2004]



Sec. 97.5  Retired unit exemption.

    (a) This section applies to any NOX Budget unit, 
otherthan a NOX Budget opt-in unit, that is 
permanentlyretired.
    (b)(1) Any NOX Budget unit, other than aNOX 
Budget opt-in unit, that is permanently retired shallbe exempt from the 
NOX Budget Trading Program, except forthe provisions of this 
section, Sec. 97.2,Sec. 97.3, Sec. 97.4, Sec. 97.7, andsubparts E, 
F, and G of this part.
    (2) The exemption under paragraph (b)(1) of this section shallbecome 
effective the day on which the unit is permanently retired.Within 30 
days of permanent retirement, the NOX authorizedaccount 
representative (authorized in accordance with subpart B ofthis part) 
shall submit a statement to the permitting authorityotherwise 
responsible for administering any NOX Budget

[[Page 866]]

permit for the unit. The NOX authorized accountrepresentative 
shall submit a copy of the statement to theAdministrator. The statement 
shall state, in a format prescribed bythe permitting authority, that the 
unit is permanently retired andwill comply with the requirements of 
paragraph (c) of this section.
    (3) After receipt of the notice under paragraph (b)(2) of 
thissection, the permitting authority will amend any permit covering 
thesource at which the unit is located to add the provisions 
andrequirements of the exemption under paragraphs (b)(1) and (c) of 
thissection.
    (c) Special provisions. (1) A unit exempt under this sectionshall 
not emit any nitrogen oxides, starting on the date that theexemption 
takes effect.
    (2) The Administrator will allocate NOX allowancesunder 
subpart E of this part to a unit exempt under this section. Foreach 
control period for which the unit is allocated one or moreNOX 
allowances, the owners and operators of the unit shallspecify a general 
account, in which the Administrator will record suchNOX 
allowances.
    (3) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under this section 
shallretain at the source that includes the unit, records 
demonstratingthat the unit is permanently retired. The 5-year period for 
keepingrecords may be extended for cause, at any time prior to the end 
of theperiod, in writing by the permitting authority or the 
Administrator.The owners and operators bear the burden of proof that the 
unit ispermanently retired.
    (4) The owners and operators and, to the extent applicable, 
theNOX authorized account representative of a unit 
exemptunder this section shall comply with the requirements of 
theNOX Budget Trading Program concerning all periods forwhich 
the exemption is not in effect, even if such requirements arise,or must 
be complied with, after the exemption takes effect.
    (5)(i) A unit exempt under this section and located at a sourcethat 
is required, or but for this exemption would be required, to havea title 
V operating permit shall not resume operation unless theNOX 
authorized account representative of the sourcesubmits a complete 
NOX Budget permit application underSec. 97.22 for the unit 
not less than 18 months (or suchlesser time provided by the permitting 
authority) before the later ofMay 31, 2004 or the date on which the unit 
resumes operation.
    (ii) A unit exempt under this section and located at a source thatis 
required, or but for this exemption would be required, to have anon-
title V permit shall not resume operation unless theNOX 
authorized account representative of the sourcesubmits a complete 
NOX Budget permit application underSec. 97.22 for the unit 
not less than 18 months (or suchlesser time provided by the permitting 
authority) before the later ofMay 31, 2004 or the date on which the unit 
is to first resumeoperation.
    (6) On the earlier of the following dates, a unit exempt 
underparagraph (b) of this section shall lose its exemption:
    (i) The date on which the NOX authorized 
accountrepresentative submits a NOX Budget permit 
applicationunder paragraph (c)(5) of this section;
    (ii) The date on which the NOX authorized 
accountrepresentative is required under paragraph (c)(5) of this section 
tosubmit a NOX Budget permit application; or
    (iii) The date on which the unit resumes operation, if the unit 
isnot required to submit a NOX permit application.
    (7) For the purpose of applying monitoring requirements undersubpart 
H of this part, a unit that loses its exemption under thissection shall 
be treated as a unit that commences operation orcommercial operation on 
the first date on which the unit resumesoperation.
    (8) A unit that is exempt under this section is not eligible to bea 
NOX Budget opt-in unit under subpart I of this part.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002; 69 
FR 21646, Apr. 21, 2004]



Sec. 97.6  Standard requirements.

    (a) Permit requirements. (1) The NOX authorizedaccount 
representative of each NOX Budget source requiredto

[[Page 867]]

have a federally enforceable permit and each NOXBudget unit 
required to have a federally enforceable permit at thesource shall:
    (i) Submit to the permitting authority a complete 
NOXBudget permit application under Sec. 97.22 in 
accordancewith the deadlines specified in Sec. 97.21(b) and (c);
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review 
aNOX Budget permit application and issue or deny 
aNOX Budget permit.
    (2) The owners and operators of each NOX Budget 
sourcerequired to have a federally enforceable permit and 
eachNOX Budget unit required to have a federally 
enforceablepermit at the source shall have a NOX Budget 
permit issuedby the permitting authority and operate the unit in 
compliance withsuch NOX Budget permit.
    (3) The owners and operators of a NOX Budget sourcethat 
is not otherwise required to have a federally enforceable permitare not 
required to submit a NOX Budget permitapplication, and to 
have a NOX Budget permit, undersubpart C of this part for 
such NOX Budget source.
    (b) Monitoring requirements. (1) The owners and operatorsand, to the 
extent applicable, the NOX authorized accountrepresentative 
of each NOX Budget source and eachNOX Budget unit 
at the source shall comply with themonitoring requirements of subpart H 
of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart H of this part shall be used to determine 
compliance bythe unit with the NOX Budget emissions 
limitation underparagraph (c) of this section.
    (c) Nitrogen oxides requirements. (1) The owners andoperators of 
each NOX Budget source and eachNOX Budget unit at 
the source shall hold NOXallowances available for compliance 
deductions underSec. 97.54(a), (b), (e), or (f) as of the 
NOXallowance transfer deadline, in the unit's compliance 
account and thesource's overdraft account in an amount not less than the 
totalNOX emissions for the control period from the unit, 
asdetermined in accordance with subpart H of this part, plus any 
amountnecessary to account for actual heat input underSec. 97.42(e) for 
the control period or to account forexcess emissions for a prior control 
period underSec. 97.54(d) or to account for withdrawal from 
theNOX Budget Trading Program, or a change in 
regulatorystatus, of a NOX Budget opt-in unit underSec. 
97.86 or Sec. 97.87.
    (2) Each ton of nitrogen oxides emitted in excess of 
theNOX Budget emissions limitation shall constitute aseparate 
violation of this part, the Clean Air Act, and applicableState law.
    (3) A NOX Budget unit shall be subject to therequirements 
under paragraph (c)(1) of this section starting on thelater of May 31, 
2004 or the date on which the unit commencesoperation.
    (4) NOX allowances shall be held in, deducted from, 
ortransferred among NOX Allowance Tracking System accountsin 
accordance with subparts E, F, G, and I of this part.
    (5) A NOX allowance shall not be deducted, in order 
tocomply with the requirements under paragraph (c)(1) of this 
section,for a control period in a year prior to the year for which 
theNOX allowance was allocated.
    (6) A NOX allowance allocated by the Administratorunder 
the NOX Budget Trading Program is a limitedauthorization to 
emit one ton of nitrogen oxides in accordance withthe NOX 
Budget Trading Program. No provision of theNOX Budget Trading 
Program, the NOX Budgetpermit application, the NOX 
Budget permit, or an exemptionunder Sec. 97.4(b) or Sec. 97.5 and no 
provisionof law shall be construed to limit the authority of the United 
Statesto terminate or limit such authorization.
    (7) A NOX allowance allocated by the Administratorunder 
the NOX Budget Trading Program does not constitute aproperty 
right.
    (8) Upon recordation by the Administrator under subpart F or G 
ofthis part, every allocation, transfer, or deduction of aNOX 
allowance to or from a NOX Budget unit'scompliance account or 
the overdraft account of the source where theunit is located is 
incorporated automatically in any NOXBudget permit of the 
NOX Budget unit.
    (d) Excess emissions requirements. (1) The owners andoperators of a 
NOX

[[Page 868]]

Budget unit that has excessemissions in any control period shall:
    (i) Surrender the NOX allowances required fordeduction 
under Sec. 97.54(d)(1); and
    (ii) Pay any fine, penalty, or assessment or comply with any 
otherremedy imposed under Sec. 97.54(d)(3).
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the NOXBudget source 
and each NOX Budget unit at the source shallkeep on site at 
the source each of the following documents for aperiod of 5 years from 
the date the document is created. This periodmay be extended for cause, 
at any time prior to the end of 5 years, inwriting by the permitting 
authority or the Administrator.
    (i) The account certificate of representation underSec. 97.13 for 
the NOX authorized accountrepresentative for the source and 
each NOX Budget unit atthe source and all documents that 
demonstrate the truth of thestatements in the account certificate of 
representation; provided thatthe certificate and documents shall be 
retained on site at the sourcebeyond such 5-year period until such 
documents are superseded becauseof the submission of a new account 
certificate of representation underSec. 97.13 changing the 
NOX authorized accountrepresentative.
    (ii) All emissions monitoring information, in accordance withsubpart 
H of this part; provided that to the extent that subpart H ofthis part 
provides for a 3-year period for recordkeeping, the 3-yearperiod shall 
apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
NOXBudget Trading Program.
    (iv) Copies of all documents used to complete a NOXBudget 
permit application and any other submission under theNOX 
Budget Trading Program or to demonstrate compliancewith the requirements 
of the NOX Budget Trading Program.
    (2) The NOX authorized account representative of 
aNOX Budget source and each NOX Budget unit atthe 
source shall submit the reports and compliance certificationsrequired 
under the NOX Budget Trading Program, includingthose under 
subpart D, H, or I of this part.
    (f) Liability. (1) Any person who knowingly violates anyrequirement 
or prohibition of the NOX Budget TradingProgram, a 
NOX Budget permit, or an exemption underSec. 97.4(b) or 
Sec. 97.5 shall be subject toenforcement pursuant to applicable State 
or Federal law.
    (2) Any person who knowingly makes a false material statement inany 
record, submission, or report under the NOX BudgetTrading 
Program shall be subject to criminal enforcement pursuant tothe 
applicable State or Federal law.
    (3) No permit revision shall excuse any violation of therequirements 
of the NOX Budget Trading Program that occursprior to the 
date that the revision takes effect.
    (4) Each NOX Budget source and each NOXBudget 
unit shall meet the requirements of the NOX BudgetTrading 
Program.
    (5) Any provision of the NOX Budget Trading Programthat 
applies to a NOX Budget source or the 
NOXauthorized account representative of a NOX 
Budget sourceshall also apply to the owners and operators of such source 
and of theNOX Budget units at the source.
    (6) Any provision of the NOX Budget Trading Programthat 
applies to a NOX Budget unit or the NOXauthorized 
account representative of a NOX budget unitshall also apply 
to the owners and operators of such unit. Except withregard to the 
requirements applicable to units with a common stackunder subpart H of 
this part, the owners and operators and theNOX authorized 
account representative of oneNOX Budget unit shall not be 
liable for any violation byany other NOX Budget unit of which 
they are not owners oroperators or the NOX authorized account 
representative andthat is located at a source of which they are not 
owners or operatorsor the NOX authorized account 
representative.
    (g) Effect on other authorities. No provision of theNOX 
Budget Trading Program, a NOX Budgetpermit application, a 
NOX Budget permit, or an exemptionunder Sec. 97.4(b) or 
Sec. 97.5 shall be construedas exempting or excluding the owners and 
operators and, to the extentapplicable, the NOX authorized

[[Page 869]]

account representativeof a NOX Budget source or 
NOX Budget unit fromcompliance with any other provision of 
the applicable, approved Stateimplementation plan, a federally 
enforceable permit, or the Clean AirAct.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002]



Sec. 97.7  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theNOX Budget Trading Program, to begin on the occurrence 
ofan act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theNOX Budget Trading Program, to begin before the 
occurrenceof an act or event shall be computed so that the period ends 
the daybefore the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the NOX Budget Trading Program, falls on a 
weekendor a State or Federal holiday, the time period shall be extended 
tothe next business day.



Subpart B_NOX Authorized Account Representativefor NOX Budget 
                                 Sources



Sec. 97.10  Authorization and responsibilities of NOX authorizedaccount representative.

    (a) Except as provided under Sec. 97.11, eachNOX Budget 
source, including all NOX Budgetunits at the source, shall 
have one and only one NOXauthorized account representative, 
with regard to all matters underthe NOX Budget Trading 
Program concerning the source orany NOX Budget unit at the 
source.
    (b) The NOX authorized account representative of 
theNOX Budget source shall be selected by an agreementbinding 
on the owners and operators of the source and allNOX Budget 
units at the source.
    (c) Upon receipt by the Administrator of a complete 
accountcertificate of representation under Sec. 97.13, 
theNOX authorized account representative of the source 
shallrepresent and, by his or her representations, actions, inactions, 
orsubmissions, legally bind each owner and operator of theNOX 
Budget source represented and each NOXBudget unit at the 
source in all matters pertaining to theNOX Budget Trading 
Program, not withstanding any agreementbetween the NOX 
authorized account representative and suchowners and operators. The 
owners and operators shall be bound by anydecision or order issued to 
the NOX authorized accountrepresentative by the permitting 
authority, the Administrator, or acourt regarding the source or unit.
    (d) No NOX Budget permit shall be issued, and 
noNOX Allowance Tracking System account shall be 
establishedfor a NOX Budget unit at a source, until the 
Administratorhas received a complete account certificate of 
representation underSec. 97.13 for a NOX authorized 
accountrepresentative of the source and the NOX Budget units 
atthe source.
    (e) (1) Each submission under the NOX Budget 
TradingProgram shall be submitted, signed, and certified by 
theNOX authorized account representative for 
eachNOX Budget source on behalf of which the submission 
ismade. Each such submission shall include the following 
certificationstatement by the NOX authorized account 
representative:``I am authorized to make this submission on behalf of 
theowners and operators of the NOX Budget sources 
orNOX Budget units for which the submission is made. Icertify 
under penalty of law that I have personally examined, and amfamiliar 
with, the statements and information submitted in thisdocument and all 
its attachments. Based on my inquiry of thoseindividuals with primary 
responsibility for obtaining the information,I certify that the 
statements and information are to the best of myknowledge and belief 
true, accurate, and complete. I am aware thatthere are significant 
penalties for submitting false statements andinformation or omitting 
required statements and information, includingthe possibility of fine or 
imprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of aNOX 
Budget source or a NOX Budget unit only ifthe submission has 
been made, signed, and certified in

[[Page 870]]

accordancewith paragraph (e)(1) of this section.



Sec. 97.11  Alternate NOX authorized account representative.

    (a) An account certificate of representation may designate one 
andonly one alternate NOX authorized account 
representativewho may act on behalf of the NOX authorized 
accountrepresentative. The agreement by which the alternate 
NOXauthorized account representative is selected shall 
include aprocedure for authorizing the alternate NOX 
authorizedaccount representative to act in lieu of the 
NOXauthorized account representative.
    (b) Upon receipt by the Administrator of a complete 
accountcertificate of representation under Sec. 97.13, 
anyrepresentation, action, inaction, or submission by the 
alternateNOX authorized account representative shall be 
deemed tobe a representation, action, inaction, or submission by 
theNOX authorized account representative.
    (c) Except in this section and Sec. Sec. 97.10(a),97.12, 97.13, and 
97.51, whenever the term ``NOXauthorized account 
representative'' is used in this part, theterm shall be construed to 
include the alternate NOXauthorized account representative.



Sec. 97.12  Changing NOX authorized account representative andalternate NOX authorized account representative; changes inowners and operators.

    (a) Changing NOX authorized accountrepresentative. The 
NOX authorized accountrepresentative may be changed at any 
time upon receipt by theAdministrator of a superseding complete account 
certificate ofrepresentation under Sec. 97.13. Notwithstanding any 
suchchange, all representations, actions, inactions, and submissions 
bythe previous NOX authorized account representative priorto 
the time and date when the Administrator receives the supersedingaccount 
certificate of representation shall be binding on the newNOX 
authorized account representative and the owners andoperators of the 
NOX Budget source and the NOXBudget units at the 
source.
    (b) Changing alternate NOX authorized 
accountrepresentative. The alternate NOX authorized 
accountrepresentative may be changed at any time upon receipt by 
theAdministrator of a superseding complete account certificate 
ofrepresentation under Sec. 97.13. Notwithstanding any suchchange, all 
representations, actions, inactions, and submissions bythe previous 
alternate NOX authorized accountrepresentative prior to the 
time and date when the Administratorreceives the superseding account 
certificate of representation shallbe binding on the new alternate 
NOX authorized accountrepresentative and the owners and 
operators of the NOXBudget source and the NOX 
Budget units at the source.
    (c) Changes in owners and operators. (1) In the event a newowner or 
operator of a NOX Budget source or aNOX Budget 
unit is not included in the list of owners andoperators submitted in the 
account certificate of representation underSec. 97.13, such new owner 
or operator shall be deemed to besubject to and bound by the account 
certificate of representation, therepresentations, actions, inactions, 
and submissions of theNOX authorized account representative 
and any alternateNOX authorized account representative of the 
source orunit, and the decisions, orders, actions, and inactions of 
thepermitting authority or the Administrator, as if the new owner 
oroperator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a NOX Budget source or a NOXBudget unit, 
including the addition of a new owner or operator, theNOX 
authorized account representative or alternateNOX authorized 
account representative shall submit arevision to the account certificate 
of representation underSec. 97.13 amending the list of owners and 
operators toinclude the change.



Sec. 97.13  Account certificate of representation.

    (a) A complete account certificate of representation for 
aNOX authorized account representative or an 
alternateNOX authorized account representative shall include 
thefollowing elements in a format prescribed by the Administrator:
    (1) Identification of the NOX Budget source and 
eachNOX Budget unit at

[[Page 871]]

the source for which the accountcertificate of representation is 
submitted.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the NOXauthorized 
account representative and any alternate NOXauthorized 
account representative.
    (3) A list of the owners and operators of the NOXBudget 
source and of each NOX Budget unit at the source.
    (4) The following certification statement by the 
NOXauthorized account representative and any alternate 
NOXauthorized account representative: ``I certify that I 
wasselected as the NOX authorized account representative 
oralternate NOX authorized account representative, 
asapplicable, by an agreement binding on the owners and operators of 
theNOX Budget source and each NOX Budget unit 
atthe source. I certify that I have all the necessary authority to 
carryout my duties and responsibilities under the NOX 
BudgetTrading Program on behalf of the owners and operators of 
theNOX Budget source and of each NOX Budget unitat 
the source and that each such owner and operator shall be fullybound by 
my representations, actions, inactions, or submissions and byany 
decision or order issued to me by the permitting authority, 
theAdministrator, or a court regarding the source or unit.''
    (5) The signature of the NOX authorized 
accountrepresentative and any alternate NOX authorized 
accountrepresentative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
accountcertificate of representation shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.



Sec. 97.14  Objections concerning NOX authorized accountrepresentative.

    (a) Once a complete account certificate of representation underSec. 
97.13 has been submitted and received, the permittingauthority and the 
Administrator will rely on the account certificateof representation 
unless and until a superseding complete accountcertificate of 
representation under Sec. 97.13 is receivedby the Administrator.
    (b) Except as provided in Sec. 97.12 (a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission of the NOXauthorized account 
representative shall affect any representation,action, inaction, or 
submission of the NOX authorizedaccount representative or the 
finality of any decision or order by thepermitting authority or the 
Administrator under the NOXBudget Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of 
anyNOX authorized account representative, including 
privatelegal disputes concerning the proceeds of NOX 
allowancetransfers.



                            Subpart C_Permits



Sec. 97.20  General NOX Budget Trading Program permit requirements.

    (a) For each NOX Budget source required to have 
afederally enforceable permit, such permit shall include aNOX 
Budget permit administered by the permitting authorityfor the federally 
enforceable permit.
    (1) For NOX Budget sources required to have a title 
Voperating permit, the NOX Budget portion of the title 
Vpermit shall be administered in accordance with the 
permittingauthority's title V operating permits regulations promulgated 
underpart 70 or 71 of this chapter, except as provided otherwise by 
thissubpart or subpart I of this part.
    (2) For NOX Budget sources required to have a non-title V 
permit, the NOX Budget portion of the non-title Vpermit shall 
be administered in accordance with the permittingauthority's regulations 
promulgated to administer non-title V permits,except as provided 
otherwise by this subpart or subpart I of thispart.
    (b) Each NOX Budget permit shall contain allapplicable 
NOX Budget Trading Program requirements and

[[Page 872]]

shall be a complete and segregable portion of the permit underparagraph 
(a) of this section.



Sec. 97.21  Submission of NOX Budget permit applications.

    (a) Duty to apply. The NOX authorized 
accountrepresentative of any NOX Budget source required to 
have afederally enforceable permit shall submit to the permitting 
authoritya complete NOX Budget permit application underSec. 
97.22 by the applicable deadline in paragraph (b) ofthis section.
    (b)(1) For NOX Budget sources required to have a titleV 
operating permit:
    (i) For any source, with one or more NOX Budget 
unitsunder Sec. 97.4(a) that commence operation before January 1,2001, 
the NOX authorized account representative shallsubmit a 
complete NOX Budget permit application underSec. 97.22 
covering such NOX Budget units to thepermitting authority at 
least 18 months (or such lesser time providedby the permitting 
authority) before May 31, 2004.
    (ii) For any source, with any NOX Budget unit underSec. 
97.4(a) that commences operation on or after January 1,2001, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 97.22 covering such 
NOX Budget unit to thepermitting authority at least 18 months 
(or such lesser time providedby the permitting authority) before the 
later of May 31, 2004 or thedate on which the NOX Budget unit 
commences operation.
    (2) For NOX Budget sources required to have a non-title V 
permit:
    (i) For any source, with one or more NOX Budget 
unitsunder Sec. 97.4(a) that commence operation before January 1,2001, 
the NOX authorized account representative shallsubmit a 
complete NOX Budget permit application underSec. 97.22 
covering such NOX Budget units to thepermitting authority at 
least 18 months (or such lesser time providedby the permitting 
authority) before May 31, 2004.
    (ii) For any source, with any NOX Budget unit underSec. 
97.4(a) that commences operation on or after January 1,2001, the 
NOX authorized account representative shallsubmit a complete 
NOX Budget permit application underSec. 97.22 covering such 
NOX Budget unit to thepermitting authority at least 18 months 
(or such lesser time providedby the permitting authority) before the 
later of May 31, 2004 or thedate on which the NOX Budget unit 
commences operation.
    (c) Duty to reapply. (1) For a NOX Budget sourcerequired 
to have a title V operating permit, the NOXauthorized account 
representative shall submit a completeNOX Budget permit 
application under Sec. 97.22for the NOX Budget source 
covering the NOXBudget units at the source in accordance with 
the permittingauthority's title V operating permits regulations 
addressing operatingpermit renewal.
    (2) For a NOX Budget source required to have a non-title 
V permit, the NOX authorized account representativeshall 
submit a complete NOX Budget permit applicationunder Sec. 
97.22 for the NOX Budget sourcecovering the NOX 
Budget units at the source in accordancewith the permitting authority's 
non-title V permits regulationsaddressing permit renewal.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002]



Sec. 97.22  Information requirements for NOX Budget permitapplications.

    A complete NOX Budget permit application shall includethe 
following elements concerning the NOX Budget sourcefor which 
the application is submitted, in a format prescribed by thepermitting 
authority:
    (a) Identification of the NOX Budget source, 
includingplant name and the ORIS (Office of Regulatory Information 
Systems) orfacility code assigned to the source by the Energy 
InformationAdministration, if applicable;
    (b) Identification of each NOX Budget unit at 
theNOX Budget source and whether it is a NOXBudget 
unit under Sec. 97.4(a) or under subpart I of thispart;
    (c) The standard requirements under Sec. 97.6; and
    (d) For each NOX Budget opt-in unit at theNOX 
Budget source, the following certification statementsby the 
NOX authorized account representative:
    (1) ``I certify that each unit for which this permitapplication is 
submitted under subpart I of this part is not a

[[Page 873]]

NOX Budget unit under 40 CFR 97.4(a) and is notcovered by an 
exemption under 40 CFR 97.4(b) or 97.5 that is ineffect.''
    (2) If the application is for an initial NOX Budgetopt-in 
permit, ``I certify that each unit for which this permitapplication is 
submitted under subpart I of 40 CFR part 97 isoperating, as that term is 
defined under 40 CFR 97.2.''



Sec. 97.23  NOX Budget permit contents.

    (a) Each NOX Budget permit will contain, in a 
formatprescribed by the permitting authority, all elements required for 
acomplete NOX Budget permit application underSec. 97.22.
    (b) Each NOX Budget permit is deemed to 
incorporateautomatically the definitions of terms under Sec. 97.2 
and,upon recordation by the Administrator under subpart F or G of 
thispart, every allocation, transfer, or deduction of a 
NOXallowance to or from the compliance accounts of the 
NOXBudget units covered by the permit or the overdraft 
account of theNOX Budget source covered by the permit.



Sec. 97.24  NOX Budget permit revisions.

    (a) For a NOX Budget source with a title V 
operatingpermit, except as provided in Sec. 97.23(b), the 
permittingauthority will revise the NOX Budget permit, as 
necessary,in accordance with the permitting authority's title V 
operatingpermits regulations addressing permit revisions.
    (b) For a NOX Budget source with a non-title V 
permit,except as provided in Sec. 97.23(b), the permittingauthority 
will revise the NOX Budget permit, as necessary,in accordance 
with the permitting authority's non-title V permitsregulations 
addressing permit revisions.



                   Subpart D_Compliance Certification



Sec. 97.30  Compliance certification report.

    (a) Applicability and deadline. For each control period inwhich one 
or more NOX Budget units at a source are subjectto the 
NOX Budget emissions limitation, theNOX authorized 
account representative of the source shallsubmit to the permitting 
authority and the Administrator by November30 of that year, a compliance 
certification report for each sourcecovering all such units.
    (b) Contents of report. The NOX authorizedaccount 
representative shall include in the compliance certificationreport under 
paragraph (a) of this section the following elements, ina format 
prescribed by the Administrator, concerning each unit at thesource and 
subject to the NOX Budget emissions limitationfor the control 
period covered by the report:
    (1) Identification of each NOX Budget unit;
    (2) At the NOX authorized account representative'soption, 
the serial numbers of the NOX allowances that areto be 
deducted from each unit's compliance account underSec. 97.54 for the 
control period;
    (3) At the NOX authorized account representative'soption, 
for units sharing a common stack and having NOXemissions that 
are not monitored separately or apportioned inaccordance with subpart H 
of this part, the percentage of allowancesthat is to be deducted from 
each unit's compliance account underSec. 97.54(e); and
    (4) The compliance certification under paragraph (c) of thissection.
    (c) Compliance certification. In the compliancecertification report 
under paragraph (a) of this section, theNOX authorized 
account representative shall certify, basedon reasonable inquiry of 
those persons with primary responsibility foroperating the source and 
the NOX Budget units at thesource in compliance with the 
NOX Budget Trading Program,whether each NOX Budget 
unit for which the compliancecertification is submitted was operated 
during the calendar yearcovered by the report in compliance with the 
requirements of theNOX Budget Trading Program applicable to 
the unit,including:
    (1) Whether the unit was operated in compliance with 
theNOX Budget emissions limitation;
    (2) Whether the monitoring plan that governs the unit has 
beenmaintained to reflect the actual operation and monitoring of the 
unitand contains all information necessary to attribute NOX

[[Page 874]]

emissions to the unit, in accordance with subpart H of this part;
    (3) Whether all the NOX emissions from the unit, or 
agroup of units (including the unit) using a common stack, weremonitored 
or accounted for through the missing data procedures andreported in the 
quarterly monitoring reports, including whetherconditional data were 
reported in the quarterly reports in accordancewith subpart H of this 
part. If conditional data were reported, theowner or operator shall 
indicate whether the status of all conditionaldata has been resolved and 
all necessary quarterly reportresubmissions have been made;
    (4) Whether the facts that form the basis for certification 
undersubpart H of this part of each monitor at the unit or a group of 
units(including the unit) using a common stack, or for using an 
exceptedmonitoring method or alternative monitoring method approved 
undersubpart H of this part, if any, have changed; and
    (5) If a change is required to be reported under paragraph (c)(4)of 
this section, specify the nature of the change, the reason for 
thechange, when the change occurred, and how the unit's compliance 
statuswas determined subsequent to the change, including what method 
wasused to determine emissions when a change mandated the need 
formonitor recertification.



Sec. 97.31  Administrator's action on compliance certifications.

    (a) The Administrator may review and conduct independent 
auditsconcerning any compliance certification or any other submission 
underthe NOX Budget Trading Program and make 
appropriateadjustments of the information in the compliance 
certifications orother submissions.
    (b) The Administrator may deduct NOX allowances fromor 
transfer NOX allowances to a unit's compliance accountor a 
source's overdraft account based on the information in thecompliance 
certifications or other submissions, as adjusted underparagraph (a) of 
this section.



                   Subpart E_NOX Allowance Allocations



Sec. 97.40  Trading program budget.

    In accordance with Sec. Sec. 97.41 and 97.42, theAdministrator will 
allocate to the NOX Budget units underSec. 97.4(a) in a 
State, for each control period specifiedin Sec. 97.41, a total number 
of NOX allowancesequal to the trading budget for the State, 
as set forth in appendix Cof this part, less the sum of the 
NOX emission limitations(in tons) for each unit exempt under 
Sec. 97.4(b) that isnot allocated any NOX allowances 
underSec. 97.42 (b) or (c) for the control period and 
whoseNOX emission limitation (in tons of NOX) 
isnot included in the amount calculated under Sec. 97.42(d)(5)(ii)(B) 
for the control period.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21646, Apr.21, 2004]



Sec. 97.41  Timing requirements for NOX allowance allocations.

    (a) The NOX allowance allocations, determined 
inaccordance with Sec. Sec. 97.42(a) through (c), for thecontrol 
periods in 2004 through 2007 are set forth in appendices A andB of this 
part.
    (b) By April 1, 2005, the Administrator will determine by orderthe 
NOX allowance allocations, in accordance withSec. Sec. 97.42 
(a) through (c), for the control periodsin 2008 through 2012.
    (c) By April 1, 2010, by April 1 of 2015, and thereafter by April1 
of the year that is 5 years after the last year for whichNOX 
allowances allocations are determined, theAdministrator will determine 
by order the NOX allowanceallocations, in accordance with 
Sec. Sec. 97.42(a) through(c), for the control periods in the years 
that are 3, 4, 5, 6, and 7years after the applicable deadline under this 
paragraph (c).
    (d) By April 1, 2004 and April 1 of each year thereafter, 
theAdministrator will determine by order the NOX 
allowanceallocations, in accordance with Sec. 97.42(d), for thecontrol 
period in the year of the applicable deadline under thisparagraph (d).
    (e) The Administrator will make available to the public 
eachdetermination of NOX allowance allocations under 
paragraph(b), (c), or (d) of this

[[Page 875]]

section and will provide an opportunityfor submission of objections to 
the determination. Objections shall belimited to addressing whether the 
determination is in accordance withSec. 97.42. Based on any such 
objections, the Administratorwill adjust each determination to the 
extent necessary to ensure thatit is in accordance with Sec. 97.42.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002]



Sec. 97.42  NOX allowance allocations.

    (a)(1) The heat input (in mmBtu) used for calculatingNOX 
allowance allocations for each NOX Budgetunit under Sec. 
97.4(a) will be:
    (i) For a NOX allowance allocation underSec. 97.41(a):
    (A) For a unit under Sec. 97.4(a)(1), the average of thetwo highest 
amounts of the unit's heat input for the control periodsin 1995 through 
1998; or
    (B) For a unit under Sec. 97.4(a)(2), the control periodin 1995 or, 
if the Administrator determines that reasonably reliabledata are 
available for control periods in 1996 through 1998, theaverage of the 
two highest amounts of the unit's heat input for thecontrol periods in 
1995 through 1998.
    (ii) For a NOX allowance allocation underSec. 97.41(b), 
the unit's average heat input for the controlperiods in 2002 through 
2004.
    (iii) For a NOX allowance allocation underSec. 97.41(c), 
the unit's average heat input for the controlperiod in the years that 
are 4, 5, 6, 7, and 8 years before the firstyear for which the 
allocation is being calculated.
    (2) The unit's heat input for the control period in each 
yearspecified under paragraph (a)(1) of this section will be determined 
inaccordance with part 75 of this chapter. Notwithstanding the 
firstsentence of this paragraph (a)(2):
    (i) For a NOX allowance allocation underSec. 97.41(a), 
such heat input will be determined using thebest available data reported 
to the Administrator for the unit if theunit was not otherwise subject 
to the requirements of part 75 of thischapter for the control period.
    (ii) For a NOX allowance allocation underSec. 97.41(b) 
or (c) for a unit exempt underSec. 97.4(b), such heat input shall be 
treated as zero ifthe unit is exempt under Sec. 97.4(b) during the 
controlperiod.
    (b) For each group of control periods specified inSec. 97.41(a) 
through (c), the Administrator will allocateto all NOX Budget 
units in a given State underSec. 97.4(a)(1) that commenced operation 
before May 1, 1997for allocations under Sec. 97.41(a), May 1, 2003 
forallocations under Sec. 97.41(b), and May 1 of the year 5years before 
the first year for which the allocation underSec. 97.41(c) is being 
calculated, a total number ofNOX allowances equal to 95 
percent of the portion of theState's trading program budget under Sec. 
97.40 coveringsuch units. The Administrator will allocate in accordance 
with thefollowing procedures:
    (1) The Administrator will allocate NOX allowances toeach 
NOX Budget unit under Sec. 97.4(a)(1) foreach control period 
in an amount equaling 0.15 lb/mmBtu multiplied bythe heat input 
determined under paragraph (a) of this section, dividedby 2,000 lb/ton, 
and rounded to the nearest whole number ofNOX allowances as 
appropriate.
    (2) If the initial total number of NOX 
allowancesallocated to all NOX Budget units underSec. 
97.4(a)(1) in the State for a control period underparagraph (b)(1) of 
this section does not equal 95 percent of theportion of the State's 
trading program budget underSec. 97.40 covering such units, the 
Administrator willadjust the total number of NOX allowances 
allocated to allsuch NOX Budget units for the control period 
underparagraph (b)(1) of this section so that the total number 
ofNOX allowances allocated equals 95 percent of such 
portionof the State's trading program budget. This adjustment will be 
madeby: multiplying each unit's allocation by 95 percent of such 
portionof the State's trading program budget; dividing by the total 
number ofNOX allowances allocated under paragraph (b)(1) of 
thissection for the control period; and rounding to the nearest 
wholenumber of NOX allowances as appropriate.
    (c) For each group of control periods specified inSec. 97.41(a) 
through (c), the Administrator will allocateto all NOX Budget 
units in a given State underSec. 97.4(a)(2) that commenced operation 
before May 1, 1997for allocations under

[[Page 876]]

Sec. 97.41(a), May 1, 2003 forallocations under Sec. 97.41(b), and May 
1 of the year 5years before the first year for which the allocation 
underSec. 97.41(c) is being calculated, a total number ofNOX 
allowances equal to 95 percent of the portion of theState's trading 
program budget under Sec. 97.40 coveringsuch units. The Administrator 
will allocate in accordance with thefollowing procedures:
    (1) The Administrator will allocate NOX allowances toeach 
NOX Budget unit under Sec. 97.4(a)(2) foreach control period 
in an amount equaling 0.17 lb/mmBtu multiplied bythe heat input 
determined under paragraph (a) of this section, dividedby 2,000 lb/ton, 
and rounded to the nearest whole number ofNOX allowances as 
appropriate.
    (2) If the initial total number of NOX 
allowancesallocated to all NOX Budget units underSec. 
97.4(a)(2) in the State for a control period underparagraph (c)(1) of 
this section does not equal 95 percent of theportion of the State's 
trading program budget underSec. 97.40 covering such units, the 
Administrator willadjust the total number of NOX allowances 
allocated to allsuch NOX Budget units for the control period 
underparagraph (a)(1) of this section so that the total number 
ofNOX allowances allocated equals 95 percent of the portionof 
the State's trading program budget under Sec. 97.40covering such units. 
This adjustment will be made by: multiplying eachunit's allocation by 95 
percent of the portion of the State's tradingprogram budget under Sec. 
97.40 covering such units;dividing by the total number of NOX 
allowances allocatedunder paragraph (c)(1) of this section for the 
control period; androunding to the nearest whole number of 
NOX allowances asappropriate.
    (d) For each control period specified in Sec. 97.41(d),the 
Administrator will allocate NOX allowances toNOX 
Budget units in a given State underSec. 97.4(a) (except for units 
exempt underSec. 97.4(b)) that commence operation, or are projected 
tocommence operation, on or after: May 1, 1997 (for control periodsunder 
Sec. 97.41(a)); May 1, 2003, (for control periodsunder Sec. 97.41(b)); 
and May 1 of the year 5 years beforethe beginning of the group of 5 
years that includes the control period(for control periods under Sec. 
97.41(c)). The Administratorwill make the allocations under this 
paragraph (d) in accordance withthe following procedures:
    (1) The Administrator will establish one allocation set-aside 
foreach control period. Each allocation set-aside will be 
allocatedNOX allowances equal to 5 percent of the tons 
ofNOX emission in the State's trading program budget 
underSec. 97.40, rounded to the nearest whole number ofNOX 
allowances as appropriate.
    (2) The NOX authorized account representative of 
aNOX Budget unit specified in this paragraph (d) may submitto 
the Administrator a request, in a format specified by theAdministrator, 
to be allocated NOX allowances for thecontrol period. The 
NOX allowance allocation request mustbe received by the 
Administrator on or after the date on which theState permitting 
authority issues a permit to construct the unit andby January 1 before 
the control period for which NOXallowances are requested.
    (3) In a NOX allowance allocation request underparagraph 
(d)(2) of this section, the NOX authorizedaccount 
representative for a NOX Budget unit underSec. 97.4(a)(1) 
may request for the control periodNOX allowances in an amount 
that does not exceed thelesser of:
    (i) 0.15 lb/mmBtu multiplied by the unit's maximum design heatinput, 
multiplied by the lesser of 3,672 hours or the number of hoursremaining 
in the control period starting with the day in the controlperiod on 
which the unit commences operation or is projected tocommence operation, 
divided by 2,000 lb/ton, and rounded to thenearest whole number of 
NOX allowances as appropriate; or
    (ii) The unit's most stringent State or Federal 
NOXemission limitation multiplied by the unit's maximum 
design heatinput, multiplied by the lesser of 3,672 hours or the number 
of hoursremaining in the control period starting with the day in the 
controlperiod on which the unit commences operation or is projected 
tocommence operation, divided by 2,000 lb/ton, and rounded to thenearest 
whole number of NOX allowances as appropriate.

[[Page 877]]

    (4) In a NOX allowance allocation request underparagraph 
(d)(2) of this section, the NOX authorizedaccount 
representative for a NOX Budget unit underSec. 97.4(a)(2) 
may request for the control periodNOX allowances in an amount 
that does not exceed thelesser of:
    (i) 0.17 lb/mmBtu multiplied by the unit's maximum design heatinput, 
multiplied by the lesser of 3,672 hours or the number of hoursremaining 
in the control period starting with the day in the controlperiod on 
which the unit commences operation or is projected tocommence operation, 
divided by 2,000 lb/ton, and rounded to thenearest whole number of 
NOX allowances as appropriate; or
    (ii) The unit's most stringent State or Federal 
NOXemission limitation multiplied by the unit's maximum 
design heatinput, multiplied by the lesser of 3,672 hours or the number 
of hoursremaining in the control period starting with the day in the 
controlperiod on which the unit commences operation or is projected 
tocommence operation, divided by 2,000 lb/ton, and rounded to thenearest 
whole number of NOX allowances as appropriate.
    (5) The Administrator will review each NOX 
allowanceallocation request submitted in accordance with paragraph 
(d)(2) ofthis section and will allocate NOX allowances 
pursuant tosuch request as follows:
    (i) Upon receipt of the NOX allowance allocationrequest, 
the Administrator will make any necessary adjustments to therequest to 
ensure that the requirements of paragraphs (d) introductorytext, (d)(2), 
(d)(3), and (d)(4) are met.
    (ii) The Administrator will determine the following amounts:
    (A) The sum of the NOX allowances requested (asadjusted 
under paragraph (d)(5)(i) of this section) in allNOX 
allowance allocation requests under paragraph (d)(2)of this section for 
the control period; and
    (B) For units exempt under Sec. 97.4(b) in the Statethat commenced 
operation, or are projected to commence operation, onor after May 1, 
1997 (for control periods underSec. 97.41(a)); May 1, 2003, (for 
control periods underSec. 97.41(b)); and May 1 of the year 5 years 
beforebeginning of the group of 5 years that includes the control 
period(for control periods under Sec. 97.41(c)), the sum of 
theNOX emission limitations (in tons of NOX) 
onwhich each unit's exemption under Sec. 97.4(b) is based.
    (iii) If the number of NOX allowances in theallocation 
set-aside for the control period less the amount underparagraph 
(d)(5)(ii)(B) of this section is not less than the amountdetermined 
under paragraph (d)(5)(ii)(A) of this section, theAdministrator will 
allocate the amount of the NOXallowances requested (as 
adjusted under paragraph (d)(5)(i) of thissection) to the NOX 
Budget unit for which the allocationrequest was submitted.
    (iv) If the number of NOX allowances in the 
allocationset-aside for the control period less the amount under 
paragraph (d)(5)(ii)(B) of this section is less than the amount 
determined underparagraph (d)(5)(ii)(A) of this section, the 
Administrator willallocate, to the NOX Budget unit for which 
the allocationrequest was submitted, the amount of NOX 
allowancesrequested (as adjusted under paragraph (d)(5)(i) of this 
section)multiplied by the number of NOX allowances in 
theallocation set-aside for the control period less the amount 
determinedunder paragraph (d)(5)(ii)(B) of this section, divided by the 
amountdetermined under paragraph (d)(5)(ii)(A) of this section, and 
roundedto the nearest whole number of NOX allowances 
asappropriate.
    (e)(1) For a NOX Budget unit that is 
allocatedNOX allowances under paragraph (d) of this section 
for acontrol period, the Administrator will deduct 
NOXallowances under Sec. 97.54(b), (e), or (f) to account 
forthe actual heat input of the unit during the control period. 
TheAdministrator will calculate the number of NOX 
allowancesto be deducted to account for the unit's actual heat input 
using thefollowing formulas and rounding to the nearest whole number 
ofNOX allowance as appropriate, provided that the number 
ofNOX allowances to be deducted shall be zero if the 
numbercalculated is less than zero:

NOX allowances deducted for actual heat input for aunit under 
    Sec. 97.4(a)(1) = Unit's NOXallowances allocated for 
    control period-(Unit's actual control

[[Page 878]]

    period heat inputx the lesser of 0.15 lb/mmBtu the unit'smost 
    stringent State or Federal emission limitation x 2,000lb/ton); and 
    NOX allowances deducted for actual heat inputfor a unit 
    under Sec. 97.4(a)(2) = Unit's NOXallowances allocated 
    for control period-(Unit's actual controlperiod heat input x the 
    lesser of 0.17 lb/mmBtu the unit's moststringent State or Federal 
    emission limitation x 2,000 lb/ton)

Where:

``Unit's NOX allowances allocated for controlperiod'' is the 
number of NOX allowances allocatedto the unit for the control 
period under paragraph (d) of thissection; and
``Unit's actual control period heat input'' is theheat input (in mmBtu) 
of the unit during the control period.

    (2) The Administrator will transfer any NOX 
allowancesdeducted under paragraph (e)(1) of this section to the 
allocation set-aside for the control period for which they were 
allocated.
    (f) After making the deductions for compliance underSec. 97.54(b), 
(e), or (f) for a control period, theAdministrator will determine 
whether any NOX allowancesremain in the allocation set-aside 
for the control period. TheAdministrator will allocate any such 
NOX allowances to theNOX Budget units in the State 
using the following formulaand rounding to the nearest whole number of 
NOX allowancesas appropriate:

Unit's share of NOX allowances remaining in allocationset-
    aside = Total NOX allowances remaining in allocationset-
    aside x (Unit's NOX allowance allocation/ State's trading 
    program budget excluding allocation set-aside)

Where:

``Total NOX allowances remaining in allocationset-aside'' is 
the total number of NOX allowancesremaining in the allocation 
set-aside for the control period;
``Unit's NOX allowance allocation'' is thenumber of 
NOX allowances allocated under paragraph (b) or(c) of this 
section to the unit for the control period to which theallocation set-
aside applies; and
``State's trading program budget excluding allocation set-aside'' is the 
State's trading program budget underSec. 97.40 for the control period 
to which the allocationset-aside applies multiplied by 95 percent, 
rounded to the nearestwhole number of NOX allowances as 
appropriate.

    (g) If the Administrator determines that NOXallowances 
were allocated under paragraph (b), (c), or (d) of thissection for a 
control period and the recipient of the allocation isnot actually a 
NOX Budget unit underSec. 97.4(a), the Administrator will 
notify theNOX authorized account representative and then will 
act inaccordance with the following procedures:
    (1)(i) The Administrator will not record such 
NOXallowances for the control period in an account underSec. 
97.53;
    (ii) If the Administrator already recorded such 
NOXallowances for the control period in an account underSec. 
97.53 and if the Administrator makes such determinationbefore making all 
deductions pursuant to Sec. 97.54 (exceptdeductions pursuant to Sec. 
97.54(d)(2)) for the controlperiod, then the Administrator will deduct 
from the accountNOX allowances equal in number to and 
allocated for thesame or a prior control period as the NOX 
allowancesallocated to such recipient for the control period. 
TheNOX authorized account representative shall ensure thatthe 
account contains the NOX allowances necessary forcompletion 
of such deduction. If account does not contain thenecessary 
NOX allowances, the Administrator will deductthe required 
number of NOX allowances, regardless of thecontrol period for 
which they were allocated, whenever NOXallowances are 
recorded in the account; or
    (iii) If the Administrator already recorded such 
NOXallowances for the control period in an account underSec. 
97.53 and if the Administrator makes such determinationafter making all 
deductions pursuant to Sec. 97.54 (exceptdeductions pursuant to Sec. 
97.54(d)(2)) for the controlperiod, then the Administrator will apply 
paragraph (g)(1)(ii) of thissection to any subsequent control period for 
which NOXallowances were allocated to such recipient.
    (2) The Administrator will transfer the NOX 
allowancesthat are not recorded, or that are deducted, pursuant to 
paragraph (g)(1) of this section to an

[[Page 879]]

allocation set-aside for the State inwhich such source is located.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002; 69 
FR 21646, Apr. 21, 2004]



Sec. 97.43  Compliance Supplement Pool.

    (a) For any NOX Budget unit that reduces 
itsNOX emission rate in the 2001 through 2003 control 
period,the owners and operators may request early reduction credits 
inaccordance with the following requirements:
    (1) Each NOX Budget unit for which the owners 
andoperators intend to request, or request, any early reduction 
creditsin accordance with paragraph (a)(4) of this section shall monitor 
andreport NOX emissions in accordance with subpart H of 
thispart starting in the 2000 control period and for each control 
periodfor which such early reduction credits are requested. The 
unit'spercent monitor data availability shall not be less than 90 
percentduring the 2000 control period, and the unit must be in 
fullcompliance with any applicable State or Federal 
NOXemission control requirements during 2000 through 2002.
    (2) NOX emission rate and heat input under 
paragraphs(a)(3) and (4) of this section shall be determined in 
accordance withsubpart H of this part.
    (3) Each NOX Budget unit for which the owners 
andoperators intend to request, or request, any early reduction 
creditsunder paragraph (a)(4) of this section shall reduce 
itsNOX emission rate, for each control period for which 
earlyreduction credits are requested, to less than both 0.25 lb/mmBtu 
and80 percent of the unit's NOX emission rate in the 
2000control period.
    (4) The NOX authorized account representative of 
aNOX Budget unit that meets the requirements of paragraphs(a) 
(1) and (3) of this section may submit to the Administrator arequest for 
early reduction credits for the unit based onNOX emission 
rate reductions made by the unit in thecontrol period for 2001 through 
2003.
    (i) In the early reduction credit request, the 
NOXauthorized account may request early reduction credits for 
suchcontrol period in an amount equal to the unit's heat input for 
suchcontrol period multiplied by the difference between 0.25 lb/mmBtu 
andthe unit's NOX emission rate for such control 
period,divided by 2000 lb/ton, and rounded to the nearest whole number 
oftons.
    (ii) The early reduction credit request must be submitted, in 
aformat specified by the Administrator, by February 1, 2004.
    (b) For any NOX Budget unit that is subject to theOzone 
Transport Commission NOX Budget Program under titleI of the 
Clean Air Act, the owners and operators may request earlyreduction 
credits in accordance with the following requirements:
    (1) The NOX authorized account representative of theunit 
may submit to the Administrator a request for early reductioncredits in 
an amount equal to the amount of banked allowances underthe Ozone 
Transport Commission NOX Budget Program thatwere allocated 
for the control period in 2001 through 2003 and areheld by the unit, in 
accordance with the Ozone Transport CommissionNOX Budget 
Program, as of the date of submission of therequest. During the entire 
control period in 2001 through 2003 forwhich the allowances were 
allocated, the unit must have monitored andreported NOX 
emissions in accordance with part 75 (exceptfor subpart H) of this 
chapter and the Guidance for Implementation ofEmission Monitoring 
Requirements for the NOX BudgetProgram (January 28, 1997).
    (2) The early reduction credit request under paragraph (b)(1) mustbe 
submitted, in a format specified by the Administrator, by February1, 
2004.
    (3) The NOX authorized account representative of theunit 
shall not submit a request for early reduction credits underparagraph 
(b)(1) of this section for banked allowances under the OzoneTransport 
Commission NOX Budget Program that wereallocated for any 
control period during which the unit madeNOX emission 
reductions for which he or she submits arequest for early reduction 
credits under paragraph (a) of thissection for the unit.
    (c) The Administrator will review each early reduction creditrequest 
submitted in accordance with paragraph (a) or (b) of thissection and 
will allocate NOX allowances toNOX Budget

[[Page 880]]

units in a given State and covered by suchrequest as follows:
    (1) Upon receipt of each early reduction credit request, 
theAdministrator will make any necessary adjustments to the request 
toensure that the amount of the early reduction credits requested 
meetsthe requirements of paragraph (a) or (b) of this section.
    (2) After February 1, 2004, the Administrator will make availableto 
the public a statement of the total number of early reductioncredits 
requested by NOX Budget units in the State.
    (3) If the State's compliance supplement pool set forth inappendix D 
of this part has a number of NOX allowances notless than the 
amount of early reduction credits in all early reductioncredit requests 
under paragraph (a) or (b) of this section for 2001through 2003 (as 
adjusted under paragraph (c)(1) of this section)submitted by February 1, 
2004, the Administrator will allocate to eachNOX Budget unit 
covered by such requests one allowance foreach early reduction credit 
requested (as adjusted under paragraph (c)(1) of this section).
    (4) If the State's compliance supplement pool set forth inappendix D 
of this part has a smaller number of NOXallowances than the 
amount of early reduction credits in all earlyreduction credit requests 
under paragraph (a) or (b) of this sectionfor 2001 through 2003 (as 
adjusted under paragraph (c)(1) of thissection) submitted by February 1, 
2004, the Administrator willallocate NOX allowances to each 
NOX Budgetunit covered by such requests according to the 
following formula androunding to the nearest whole number of 
NOX allowances asappropriate:

Unit's allocation for early reduction credits = Unit's adjustedearly 
    reduction credits x (State's compliance supplement pool/ Total 
    adjusted early reduction credits for all units)

Where:

``Unit's allocation for early reduction credits'' isthe number of 
NOX allowances allocated to the unit forearly reduction 
credits.
``Unit's adjusted early reduction credits'' is theamount of early 
reduction credits requested for the unit for 2001 and2002 in early 
reduction credit requests under paragraph (a) or (b) ofthis section, as 
adjusted under paragraph (c)(1) of this section.
``State's compliance supplement pool'' is the numberof NOX 
allowances in the State's compliance supplementpool set forth in 
appendix D of this part.
``Total adjusted early reduction credits for allunits'' is the amount of 
early reduction credits requested forall units for 2001 and 2002 in 
early reduction credit requests underparagraph (a) or (b) of this 
section, as adjusted under paragraph (c)(1) of this section.

    (5) By April 1, 2004, the Administrator will determine by orderthe 
allocations under paragraph (c)(3) or (4) of this section. 
TheAdministrator will make available to the public each determination 
ofNOX allowance allocations and will provide an 
opportunityfor submission of objections to the determination. Objections 
shall belimited to addressing whether the determination is in accordance 
withparagraph (c)(1), (3), or (4) of this section. Based on any 
suchobjections, the Administrator will adjust each determination to 
theextent necessary to ensure that it is in accordance with paragraph 
(c)(1), (3), or (4) of this section.
    (6) By May 1, 2004, the Administrator will record the 
allocationsunder paragraph (c)(3) or (4) of this section.
    (7) NOX allowances recorded under paragraph (c)(6) ofthis 
section may be deducted for compliance under Sec. 97.54for the control 
period in 2004 or 2005. NotwithstandingSec. 97.55(a), the Administrator 
will deduct as retired anyNOX allowance that is recorded 
under paragraph (c)(6) ofthis section and that is not deducted for 
compliance underSec. 97.54 for the control period in 2003 or 2004.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr.30, 2002; 69 
FR 21646, Apr. 21, 2004]



                 Subpart F_NOX Allowance Tracking System



Sec. 97.50  NOX Allowance Tracking System accounts.

    (a) Nature and function of compliance accounts and 
overdraftaccounts. Consistent with Sec. 97.51(a), theAdministrator will 
establish one compliance account for eachNOX Budget unit and 
one overdraft account for each sourcewith two or more NOX 
Budget units.

[[Page 881]]

Allocations ofNOX allowances pursuant to subpart E of this 
part orSec. 97.88, and deductions or transfers of 
NOXallowances pursuant to Sec. 97.31, Sec. 96.54,Sec. 
96.56, subpart G of this part, or subpart I of thispart will be recorded 
in compliance accounts or overdraft accounts inaccordance with this 
subpart.
    (b) Nature and function of general accounts. Consistent withSec. 
97.51(b), the Administrator will establish, uponrequest, a general 
account for any person. Allocations ofNOX allowances pursuant 
to Sec. 97.4(b)(4)(ii)or Sec. 97.5(c)(2) and transfers of allowances 
pursuant tosubpart G of this part will be recorded in general accounts 
inaccordance with this subpart.



Sec. 97.51  Establishment of accounts.

    (a) Compliance accounts and overdraft accounts. Upon receiptof a 
complete account certificate of representation underSec. 97.13, the 
Administrator will establish:
    (1) A compliance account for each NOX Budget unit 
forwhich the account certificate of representation was submitted; and
    (2) An overdraft account for each source for which the 
accountcertificate of representation was submitted and that has two or 
moreNOX Budget units.
    (b) General accounts.--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring allowances. An application for ageneral account may 
designate one and only one NOXauthorized account 
representative and one and only one alternateNOX authorized 
account representative who may act onbehalf of the NOX 
authorized account representative. Theagreement by which the alternate 
NOX authorized accountrepresentative is selected shall 
include a procedure for authorizingthe alternate NOX 
authorized account representative to actin lieu of the NOX 
authorized account representative. Acomplete application for a general 
account shall be submitted to theAdministrator and shall include the 
following elements in a formatprescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of theNOX 
authorized account representative and any alternateNOX 
authorized account representative;
    (B) At the option of the NOX authorized 
accountrepresentative, organization name and type of organization;
    (C) A list of all persons subject to a binding agreement for 
theNOX authorized account representative and any 
alternateNOX authorized account representative to represent 
theirownership interest with respect to the allowances held in the 
generalaccount;
    (D) The following certification statement by the 
NOXauthorized account representative and any alternate 
NOXauthorized account representative: ``I certify that I 
wasselected as the NOX authorized account representative 
orthe NOX alternate authorized account representative, 
asapplicable, by an agreement that is binding on all persons who have 
anownership interest with respect to NOX allowances held 
inthe general account. I certify that I have all the necessary 
authorityto carry out my duties and responsibilities under the 
NOXBudget Trading Program on behalf of such persons and that 
each suchperson shall be fully bound by my representations, actions, 
inactions,or submissions and by any order or decision issued to me by 
theAdministrator or a court regarding the general account.;''
    (E) The signature of the NOX authorized 
accountrepresentative and any alternate NOX authorized 
accountrepresentative and the dates signed.
    (ii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of NOX authorized 
accountrepresentative. Upon receipt by the Administrator of a 
completeapplication for a general account under paragraph (b)(1) of 
thissection:
    (i) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.

[[Page 882]]

    (ii) The NOX authorized account representativeand any 
alternate NOX authorized account representativefor the 
general account shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachperson who has an 
ownership interest with respect to NOXallowances held in the 
general account in all matters pertaining tothe NOX Budget 
Trading Program, not withstanding anyagreement between the 
NOX authorized accountrepresentative or any alternate 
NOX authorized accountrepresentative and such person. Any 
such person shall be bound by anyorder or decision issued to the 
NOX authorized accountrepresentative or any alternate 
NOX authorized accountrepresentative by the Administrator or 
a court regarding the generalaccount.
    (iii) Any representation, action, inaction, or submission by 
anyalternate NOX authorized account representative shall 
bedeemed to be a representation, action, inaction, or submission by 
theNOX authorized account representative.
    (iv) Each submission concerning the general account shall 
besubmitted, signed, and certified by the NOX 
authorizedaccount representative or any alternate NOX 
authorizedaccount representative for the persons having an ownership 
interestwith respect to NOX allowances held in the 
generalaccount. Each such submission shall include the 
followingcertification statement by the NOX authorized 
accountrepresentative or any alternate NOX authorizing 
accountrepresentative: ``I am authorized to make this submission 
onbehalf of the persons having an ownership interest with respect to 
theNOX allowances held in the general account. I certifyunder 
penalty of law that I have personally examined, and am familiarwith, the 
statements and information submitted in this document andall its 
attachments. Based on my inquiry of those individuals withprimary 
responsibility for obtaining the information, I certify thatthe 
statements and information are to the best of my knowledge andbelief 
true, accurate, and complete. I am aware that there aresignificant 
penalties for submitting false statements and informationor omitting 
required statements and information, including thepossibility of fine or 
imprisonment.''
    (v) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(iv) of thissection.
    (3) Changing NOX authorized accountrepresentative and 
alternate NOX authorized accountrepresentative; changes in 
persons with ownership interest. (i) TheNOX authorized 
account representative for a generalaccount may be changed at any time 
upon receipt by the Administratorof a superseding complete application 
for a general account underparagraph (b)(1) of this section. 
Notwithstanding any such change, allrepresentations, actions, inactions, 
and submissions by the previousNOX authorized account 
representative prior to the timeand date when the Administrator receives 
the superseding applicationfor a general account shall be binding on the 
new NOXauthorized account representative and the persons with 
an ownershipinterest with respect to the NOX allowances in 
the generalaccount.
    (ii) The alternate NOX authorized accountrepresentative 
for a general account may be changed at any time uponreceipt by the 
Administrator of a superseding complete application fora general account 
under paragraph (b)(1) of this section.Notwithstanding any such change, 
all representations, actions,inactions, and submissions by the previous 
alternate NOXauthorized account representative prior to the 
time and date when theAdministrator receives the superseding application 
for a generalaccount shall be binding on the new alternate 
NOXauthorized account representative and the persons with an 
ownershipinterest with respect to the NOX allowances in the 
generalaccount.
    (iii)(A) In the event a new person having an ownership interestwith 
respect to NOX allowances in the general account isnot 
included in the list of such persons in the account certificate 
ofrepresentation, such new person shall be deemed to be subject to 
andbound by the account certificate of representation, 
therepresentation, actions, inactions, and submissions of the

[[Page 883]]

NOX authorized account representative and anyalternate 
NOX authorized account representative of thesource or unit, 
and the decisions, orders, actions, and inactions ofthe Administrator, 
as if the new person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to NOX allowances in 
thegeneral account, including the addition of persons, theNOX 
authorized account representative or any alternateNOX 
authorized account representative shall submit arevision to the 
application for a general account amending the list ofpersons having an 
ownership interest with respect to theNOX allowances in the 
general account to include thechange.
    (4) Objections concerning NOX authorizedaccount 
representative. (i) Once a complete application for ageneral account 
under paragraph (b)(1) of this section has beensubmitted and received, 
the Administrator will rely on the applicationunless and until a 
superseding complete application for a generalaccount under paragraph 
(b)(1) of this section is received by theAdministrator.
    (ii) Except as provided in paragraph (b)(3)(i) or (ii) of 
thissection, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the NOX 
authorizedaccount representative or any alternative NOX 
authorizedaccount representative for a general account shall affect 
anyrepresentation, action, inaction, or submission of the 
NOXauthorized account representative or any alternative 
NOXauthorized account representative or the finality of any 
decision ororder by the Administrator under the NOX Budget 
TradingProgram.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the NOX authorized accountrepresentative or any 
alternative NOX authorized accountrepresentative for a 
general account, including private legal disputesconcerning the proceeds 
of NOX allowance transfers.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21646, Apr.21, 2004]



Sec. 97.52  NOX Allowance Tracking System responsibilities ofNOX authorized account representative.

    (a) Following the establishment of a NOX 
AllowanceTracking System account, all submissions to the 
Administratorpertaining to the account, including, but not limited to, 
submissionsconcerning the deduction or transfer of NOX 
allowances inthe account, shall be made only by the NOX 
authorizedaccount representative for the account.
    (b) Authorized account representative identification. 
TheAdministrator will assign a unique identifying number to 
eachNOX authorized account representative.



Sec. 97.53  Recordation of NOX allowance allocations.

    (a) The Administrator will record the NOX allowancesfor 
2004 for a NOX Budget unit allocated under subpart Eof this 
part in the unit's compliance account, except forNOX 
allowances under Sec. 97.4(b)(4)(ii) orSec. 97.5(c)(2), which will be 
recorded in the generalaccount specified by the owners and operators of 
the unit. TheAdministrator will record NOX allowances for 
2004 for aNOX Budget opt-in unit in the unit's compliance 
account asallocated under Sec. 97.88(a).
    (b) By May 1, 2003, the Administrator will record theNOX 
allowances for 2005 for a NOX Budget unitallocated under 
subpart E of this part in the unit's complianceaccount, except for 
NOX allowances underSec. 97.4(b)(4)(ii) or Sec. 97.5(c)(2), 
which willbe recorded in the general account specified by the owners 
andoperators of the unit. The Administrator will record 
NOXallowances for 2005 for a NOX Budget opt-in 
unit in theunit's compliance account as allocated under Sec. 97.88(a).
    (c) By May 1, 2003, the Administrator will record theNOX 
allowances for 2006 for a NOX Budget unitallocated under 
subpart E of this part in the unit's

[[Page 884]]

complianceaccount, except for NOX allowances underSec. 
97.4(b)(4)(ii) or Sec. 97.5(c)(2), which willbe recorded in the general 
account specified by the owners andoperators of the unit. The 
Administrator will record NOXallowances for 2006 for a 
NOX Budget opt-in unit in theunit's compliance account as 
allocated under Sec. 97.88(a).
    (d) By May 1, 2004, the Administrator will record theNOX 
allowances for 2007 for a NOX Budget unitallocated under 
subpart E of this part in the unit's complianceaccount, except for 
NOX allowances underSec. 97.4(b)(4)(ii) or Sec. 97.5(c)(2), 
which willbe recorded in the general account specified by the owners 
andoperators of the unit. The Administrator will record 
NOXallowances for 2007 for a NOX Budget opt-in 
unit in theunit's compliance account as allocated under Sec. 97.88(a).
    (e) Each year starting with 2005, after the Administrator has 
madeall deductions from a NOX Budget unit's compliance 
accountand the overdraft account pursuant to Sec. 97.54 
(exceptdeductions pursuant to Sec. 97.54(d)(2)), the Administratorwill 
record:
    (1) NOX allowances, in the compliance account, 
asallocated to the unit under subpart E of this part for the third 
yearafter the year of the control period for which such deductions were 
orcould have been made;
    (2) NOX allowances, in the general account specifiedby 
the owners and operators of the unit, as allocated underSec. 
97.4(b)(4)(ii) or Sec. 97.5(c)(2) for thethird year after the year of 
the control period for which suchdeductions are or could have been made; 
and
    (3) NOX allowances, in the compliance account, 
asallocated to the unit under Sec. 97.88(a).
    (f) Serial numbers for allocated NOXallowances. When 
allocating NOX allowances to aNOX Budget unit and 
recording them in an account, theAdministrator will assign each 
NOX allowance a uniqueidentification number that will include 
digits identifying the yearfor which the NOX allowance is 
allocated.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr.30, 2002]



Sec. 97.54  Compliance.

    (a) NOX allowance transfer deadline. TheNOX 
allowances are available to be deducted for compliancewith a unit's 
NOX Budget emissions limitation for acontrol period in a 
given year only if the NOX allowances:
    (1) Were allocated for a control period in a prior year or thesame 
year; and
    (2) Are held in the unit's compliance account, or the 
overdraftaccount of the source where the unit is located, as of 
theNOX allowance transfer deadline for that control period 
orare transferred into the compliance account or overdraft account by 
aNOX allowance transfer correctly submitted for 
recordationunder Sec. 97.60 by the NOX allowance 
transferdeadline for that control period.
    (b) Deductions for compliance. (1) Following therecordation, in 
accordance with Sec. 97.61, ofNOX allowance transfers 
submitted for recordation in theunit's compliance account or the 
overdraft account of the source wherethe unit is located by the 
NOX allowance transfer deadlinefor a control period, the 
Administrator will deduct NOXallowances available under 
paragraph (a) of this section to cover theunit's NOX 
emissions (as determined in accordance withsubpart H of this part), or 
to account for actual heat input underSec. 97.42(e), for the control 
period:
    (i) From the compliance account; and
    (ii) Only if no more NOX allowances available 
underparagraph (a) of this section remain in the compliance account, 
fromthe overdraft account. In deducting allowances for units at the 
sourcefrom the overdraft account, the Administrator will begin with the 
unithaving the compliance account with the lowest account number and 
endwith the unit having the compliance account with the highest 
accountnumber (with account numbers sorted beginning with the left-
mostcharacter and ending with the right-most character and the 
lettercharacters assigned values in alphabetical order and less than 
allnumeric characters).
    (2) The Administrator will deduct NOX allowances 
firstunder paragraph (b)(1)(i) of this section and then under paragraph 
(b)(1)(ii) of this section:
    (i) Until the number of NOX allowances deducted forthe 
control period equals the number of tons of NOXemissions, 
determined in accordance with

[[Page 885]]

subpart H of this part,from the unit for the control period for which 
compliance is beingdetermined, plus the number of NOX 
allowances required fordeduction to account for actual heat input 
underSec. 97.42(e) for the control period; or
    (ii) Until no more NOX allowances available 
underparagraph (a) of this section remain in the respective account.
    (c)(1) Identification of NOX allowances byserial number. The 
NOX authorized accountrepresentative for each compliance 
account may identify by serialnumber the NOX allowances to be 
deducted from the unit'scompliance account under paragraph (b), (d), 
(e), or (f) of thissection. Such identification shall be made in the 
compliancecertification report submitted in accordance withSec. 97.30.
    (2) First-in, first-out. The Administrator will deductNOX 
allowances for a control period from the complianceaccount, in the 
absence of an identification or in the case of apartial identification 
of NOX allowances by serial numberunder paragraph (c)(1) of 
this section, or the overdraft account on afirst-in, first-out (FIFO) 
accounting basis in the following order:
    (i) Those NOX allowances that were allocated for 
thecontrol period to the unit under subpart E or I of this part;
    (ii) Those NOX allowances that were allocated for 
thecontrol period to any unit and transferred and recorded in the 
accountpursuant to subpart G of this part, in order of their date 
ofrecordation;
    (iii) Those NOX allowances that were allocated for aprior 
control period to the unit under subpart E or I of this part;and
    (iv) Those NOX allowances that were allocated for aprior 
control period to any unit and transferred and recorded in theaccount 
pursuant to subpart G of this part, in order of their date 
ofrecordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section, theAdministrator 
will deduct from the unit's compliance account or theoverdraft account 
of the source where the unit is located a number ofNOX 
allowances, allocated for a control period after thecontrol period in 
which the unit has excess emissions, equal to threetimes the number of 
the unit's excess emissions.
    (2) If the compliance account or overdraft account does notcontain 
sufficient NOX allowances, the Administrator willdeduct the 
required number of NOX allowances, regardlessof the control 
period for which they were allocated, wheneverNOX allowances 
are recorded in either account.
    (3) Any allowance deduction required under paragraph (d) of 
thissection shall not affect the liability of the owners and operators 
ofthe NOX Budget unit for any fine, penalty, or assessment,or 
their obligation to comply with any other remedy, for the sameviolation, 
as ordered under the Clean Air Act or applicable State law.The following 
guidelines will be followed in assessing fines,penalties or other 
obligations:
    (i) For purposes of determining the number of days of violation,if a 
NOX Budget unit has excess emissions for a controlperiod, 
each day in the control period (153 days) constitutes a day inviolation 
unless the owners and operators of the unit demonstrate thata lesser 
number of days should be considered.
    (ii) Each ton of excess emissions is a separate violation.
    (e) Deductions for units sharing a common stack. In the caseof units 
sharing a common stack and having emissions that are notseparately 
monitored or apportioned in accordance with subpart H ofthis part:
    (1) The NOX authorized account representative of theunits 
may identify the percentage of NOX allowances to bededucted 
from each such unit's compliance account to cover the unit'sshare of 
NOX emissions from the common stack for a controlperiod. Such 
identification shall be made in the compliancecertification report 
submitted in accordance withSec. 97.30.
    (2) Notwithstanding paragraph (b)(2)(i) of this section, 
theAdministrator will deduct NOX allowances for each suchunit 
until the number of NOX allowances deducted equalsthe unit's 
identified percentage under paragraph (e)(1) of thissection or, if no 
percentage is identified, an equal percentage

[[Page 886]]

for each unit multiplied by the number of tons of 
NOXemissions, as determined in accordance with subpart H of 
this part,from the common stack for the control period for which 
compliance isbeing determined. In addition to the deductions under the 
firstsentence of this paragraph (e)(1), the Administrator will 
deductNOX allowances for each such unit until the number 
ofNOX allowances deducted equals the number ofNOX 
allowances required to account for actual heat inputunder Sec. 97.42(e) 
for the unit for the control period.
    (f) Deduction of banked allowances. Each year starting in2006, after 
the Administrator has completed the designation of bankedNOX 
allowances under Sec. 97.55(b) and beforeMay 1 of the year, the 
Administrator will determine the extent towhich banked NOX 
allowances otherwise available underparagraph (a) of this section are 
available for compliance in thecontrol period for the current year, as 
follows. For each StateNOX Budget Trading Program that is 
established, andapproved and administered by the Administrator pursuant 
toSec. 51.121 of this chapter, the terms ``complianceaccount'' or 
``compliance accounts'',``overdraft account'' or ``overdraftaccounts'', 
``general account'' or ``generalaccounts'', ``States'', and ``trading 
programbudgets under Sec. 97.40'' in paragraphs (f)(1)through (f)(3) of 
this section shall be read to include respectively:A compliance account 
or compliance accounts established under suchState NOX Budget 
Trading Program; an overdraft account oroverdraft accounts established 
under such State NOX BudgetTrading Program; a general account 
or general accounts establishedunder such State NOX Budget 
Trading Program; the State orportion of a State covered by such State 
NOX BudgetTrading Program; and the trading program budget of 
the State orportion of a State covered by such State NOX 
BudgetTrading Program.
    (1) The Administrator will determine the total number of 
bankedNOX allowances held in compliance accounts, 
overdraftaccounts, or general accounts.
    (2) If the total number of banked NOX 
allowancesdetermined, under paragraph (f)(1) of this section, to be held 
incompliance accounts, overdraft accounts, or general accounts is 
lessthan or equal to 10 percent of the sum of the trading program 
budgetsunder Sec. 97.40 for all States for the control period, 
anybanked NOX allowance may be deducted for compliance 
inaccordance with paragraphs (a) through (e) of this section.
    (3) If the total number of banked NOX 
allowancesdetermined, under paragraph (f)(1) of this section, to be held 
incompliance accounts, overdraft accounts, or general accounts exceeds10 
percent of the sum of the trading program budgets underSec. 97.40 for 
all States for the control period, any bankedallowance may be deducted 
for compliance in accordance with paragraphs(a) through (e) of this 
section, except as follows:
    (i) The Administrator will determine the following ratio: 
0.10multiplied by the sum of the trading program budgets underSec. 
97.40 for all States for the control period and dividedby the total 
number of banked NOX allowances determined,under paragraph 
(f)(1) of this section, to be held in complianceaccounts, overdraft 
accounts, or general accounts.
    (ii) The Administrator will multiply the number of 
bankedNOX allowances in each compliance account or 
overdraftaccount by the ratio determined under paragraph (f)(3)(i) of 
thissection. The resulting product is the number of banked 
NOXallowances in the account that may be deducted for 
compliance inaccordance with paragraphs (a) through (e) of this section. 
Any bankedNOX allowances in excess of the resulting product 
may bededucted for compliance in accordance with paragraphs (a) through 
(e)of this section, except that, if such NOX allowances 
areused to make a deduction under paragraph (b) or (e) of this 
section,two (rather than one) such NOX allowances shall 
authorizeup to one ton of NOX emissions during the control 
periodand must be deducted for each deduction of one 
NOXallowance required under paragraph (b) or (e) of this 
section.
    (g) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account or overdraft account alldeductions from 
such an

[[Page 887]]

account pursuant to paragraph (b), (d),(e), or (f) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr.30, 2002; 69 
FR 21646, Apr. 21, 2004]



Sec. 97.55  Banking.

    NOX allowances may be banked for future use ortransfer in 
a compliance account, an overdraft account, or a generalaccount, as 
follows:
    (a) Any NOX allowance that is held in a 
complianceaccount, an overdraft account, or a general account will 
remain insuch account unless and until the NOX allowance 
isdeducted or transferred under Sec. 97.31,Sec. 97.54, Sec. 97.56, or 
subpart G or I of thispart.
    (b) The Administrator will designate, as a ``banked''NOX 
allowance, any NOX allowance that remainsin a compliance 
account, an overdraft account, or a general accountafter the 
Administrator has made all deductions for a given controlperiod from the 
compliance account or overdraft account pursuant toSec. 97.54 (except 
deductions pursuant toSec. 97.54(d)(2)) and that was allocated for that 
controlperiod or a control period in a prior year.



Sec. 97.56  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any NOX 
AllowanceTracking System account. Within 10 business days of making 
suchcorrection, the Administrator will notify the 
NOXauthorized account representative for the account.



Sec. 97.57  Closing of general accounts.

    (a) The NOX authorized account representative of ageneral 
account may instruct the Administrator to close the account bysubmitting 
a statement requesting deletion of the account from theNOX 
Allowance Tracking System and by correctly submittingfor recordation 
under Sec. 97.60 an allowance transfer ofall NOX allowances 
in the account to one or more otherNOX Allowance Tracking 
System accounts.
    (b) If a general account shows no activity for a period of a yearor 
more and does not contain any NOX allowances, 
theAdministrator may notify the NOX authorized 
accountrepresentative for the account that the account will be closed 
anddeleted from the NOX Allowance Tracking System following20 
business days after the notice is sent. The account will be closedafter 
the 20-day period unless before the end of the 20-day period 
theAdministrator receives a correctly submitted transfer 
ofNOX allowances into the account under Sec. 97.60or a 
statement submitted by the NOX authorized 
accountrepresentative demonstrating to the satisfaction of the 
Administratorgood cause as to why the account should not be closed.



                    Subpart G_NOX Allowance Transfers



Sec. 97.60  Submission of NOX allowance transfers.

    The NOX authorized account representatives 
seekingrecordation of a NOX allowance transfer shall submit 
thetransfer to the Administrator. To be considered correctly 
submitted,the NOX allowance transfer shall include the 
followingelements in a format specified by the Administrator:
    (a) The numbers identifying both the transferor and 
transfereeaccounts;
    (b) A specification by serial number of each NOXallowance 
to be transferred; and
    (c) The printed name and signature of the NOXauthorized 
account representative of the transferor account and thedate signed.



Sec. 97.61  EPA recordation.

    (a) Within 5 business days of receiving a NOXallowance 
transfer, except as provided in paragraph (b) of thissection, the 
Administrator will record a NOX allowancetransfer by moving 
each NOX allowance from the transferoraccount to the 
transferee account as specified by the request,provided that:
    (1) The transfer is correctly submitted underSec. 97.60; and
    (2) The transferor account includes each NOX 
allowanceidentified by serial number in the transfer.
    (b) A NOX allowance transfer that is submitted 
forrecordation following the NOX allowance transfer 
deadlineand that includes any NOX allowances allocated for 
acontrol period prior to or the same as the control period to which 
theNOX allowance transfer deadline

[[Page 888]]

applies will not berecorded until after the Administrator completes the 
recordation ofNOX allowance allocations under Sec. 97.53 
forthe control period in the fourth year after the control period 
towhich the NOX allowance transfer deadline applies.
    (c) Where a NOX allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21647, Apr.21, 2004]



Sec. 97.62  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a NOX allowance transfer underSec. 97.61, 
the Administrator will notify theNOX authorized account 
representatives of both thetransferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a NOX allowance transfer that fails to meetthe 
requirements of Sec. 97.61(a), the Administrator willnotify the 
NOX authorized account representatives of bothaccounts 
subject to the transfer of:
    (1) A decision not to record the transfer; and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of 
aNOX allowance transfer for recordation followingnotification 
of non-recordation.



                   Subpart H_Monitoring and Reporting



Sec. 97.70  General requirements.

    The owners and operators, and to the extent applicable, 
theNOX authorized account representative of a 
NOXBudget unit, shall comply with the monitoring, 
recordkeeping, andreporting requirements as provided in this subpart and 
in subpart H ofpart 75 of this chapter. For purposes of complying with 
suchrequirements, the definitions in Sec. 97.2 and inSec. 72.2 of this 
chapter shall apply, and the terms``affected unit,'' 
``designatedrepresentative,'' and ``continuous emission 
monitoringsystem'' (or ``CEMS'') in part 75 of this chaptershall be 
deemed to refer to the terms ``NOX Budgetunit,'' 
``NOX authorized accountrepresentative,'' and ``continuous 
emission monitoringsystem'' (or ``CEMS'') respectively, as defined 
inSec. 97.2. The owner or operator of a unit that is not 
aNOX Budget unit but that is monitored underSec. 
75.72(b)(2)(ii) of this chapter shall comply with themonitoring, 
recordkeeping, and reporting requirements for aNOX Budget 
unit under this part.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each NOX Budgetunit 
shall meet the following requirements. These provisions shallalso apply 
to a unit for which an application for a NOXBudget opt-in 
permit is submitted and not denied or withdrawn, asprovided in subpart I 
of this part:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass emissions. This includes all 
systemsrequired to monitor NOX emission rate, 
NOXconcentration, heat input rate, and stack flow rate, in 
accordancewith Sec. Sec. 75.71 and 75.72 of this chapter.
    (2) Install all monitoring systems for monitoring heat input rate.
    (3) Successfully complete all certification tests required 
underSec. 97.71 and meet all other requirements of this subpartand part 
75 of this chapter applicable to the monitoring systems underparagraphs 
(a)(1) and (2) of this section.
    (4) Record, report, and quality-assure the data from themonitoring 
systems under paragraphs (a)(1) and (2) of this section.
    (b) Compliance deadlines. The owner or operator shall meetthe 
certification and other requirements of paragraphs (a)(1) through(a)(3) 
of this section on or before the following dates. The owner oroperator 
shall record, report and quality-assure the data from themonitoring 
systems under paragraphs (a)(1) and (a)(2) of this sectionon and after 
the following dates.
    (1) For the owner or operator of a NOX Budget unit 
forwhich the owner or operator intends to apply for early 
reductioncredits under Sec. 97.43, by May 1, 2001. If the owner 
oroperator of a NOX Budget unit fails to meet this

[[Page 889]]

deadline, he or she is not eligible to apply for early reductioncredits 
and is subject to the deadline under paragraph (b)(2) of thissection.
    (2) For the owner or operator of a NOX Budget unitunder 
Sec. 97.4(a) that commences operation before January1, 2003 and that is 
not subject to or does not meet the deadline underparagraph (b)(1) of 
this section, by May 1, 2003.
    (3) For the owner or operator of a NOX Budget unitunder 
Sec. 97.4(a) that commences operation on or afterJanuary 1, 2003 and 
that reports on an annual basis underSec. 97.74(d) by the following 
dates:
    (i) The earlier of 90 unit operating days after the date on whichthe 
unit commences commercial operation or 180 calendar days after thedate 
on which the unit commences commercial operation; or
    (ii) May 1, 2003, if the compliance date under paragraph (b)(3)(i)of 
this section is before May 1, 2003.
    (4) For the owner or operator of a NOX Budget unitunder 
Sec. 97.4(a) that commences operation on or afterJanuary 1, 2003 and 
that reports on a control period basis underSec. 97.74(d)(2)(ii), by 
the following dates:
    (i) The earlier of 90 unit operating days or 180 calendar daysafter 
the date on which the unit commences commercial operation, ifthis 
compliance date is during a control period; or
    (ii) May 1 immediately following the compliance date underparagraph 
(b)(4)(i) of this section, if such compliance date is notduring a 
control period.
    (5) For the owner or operator of a NOX Budget unitthat 
has a new stack or flue or add-on NOX emissioncontrols for 
which construction is completed after the applicabledeadline under 
paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of thissection or under 
subpart I of this part and that reports on an annualbasis under Sec. 
97.74(d), by the earlier of 90 unitoperating days or 180 calendar days 
after the date on which emissionsfirst exit to the atmosphere through 
the new stack or flue or add-onNOX emission controls.
    (6) For the owner or operator of a NOX Budget unitthat 
has a new stack or flue or add-on NOX emissioncontrols for 
which construction is completed after the applicabledeadline under 
paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of thissection or under 
subpart I of this part and that reports on a controlperiod basis under 
Sec. 97.74(d)(2)(ii), by the followingdates:
    (i) The earlier of 90 unit operating days or 180 calendar daysafter 
the date on which emissions first exit to the atmosphere throughthe new 
stack or flue or add-on NOX emission controls, ifthis 
compliance date is during a control period; or
    (ii) May 1 immediately following the compliance date underparagraph 
(b)(6)(i) of this section, if such compliance date is notduring a 
control period.
    (7) For the owner or operator of a unit for which an applicationfor 
a NOX Budget opt-in permit is submitted and not deniedor 
withdrawn, by the date specified under subpart I of this part.
    (c) Commencement of data reporting. (1) The owner oroperator of 
NOX Budget units under paragraph (b)(1) or (b)(2) of this 
section shall determine, record and report NOXmass emissions, 
heat input rate, and any other values required todetermine 
NOX mass emissions (e.g., NOXemission rate and 
heat input rate, or NOX concentrationand stack flow rate) in 
accordance with Sec. 75.70(g) ofthis chapter, beginning on the first 
hour of the applicable compliancedeadline in paragraph (b)(1) or (b)(2) 
of this section.
    (2) The owner or operator of a NOX Budget unit 
underparagraph (b)(3) or (b)(4) of this section shall determine, record 
andreport NOX mass emissions, heat input rate, and any 
othervalues required to determine NOX mass emissions(e.g., 
NOX emission rate and heat input rate, orNOX 
concentration and stack flow rate) and electric andthermal output in 
accordance with Sec. 75.70(g) of thischapter, beginning on:
    (i) The date and hour on which the unit commences operation, ifthe 
date and hour on which the unit commences operation is during acontrol 
period; or
    (ii) The first hour on May 1 of the first control period after 
thedate and hour on which the unit commences operation, if the date 
andhour on which the unit commences operation is not during a 
controlperiod.

[[Page 890]]

    (3) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) ofthis 
section, the owner or operator may begin reportingNOX mass 
emission data and heat input data before the dateand hour under 
paragraph (c)(2)(i) or (c)(2)(ii) of this section ifthe unit reports on 
an annual basis and if the required monitoringsystems are certified 
before the applicable date and hour underparagraph (c)(1) or (c)(2) of 
this section.
    (d) Prohibitions. (1) No owner or operator of aNOX Budget 
unit shall use any alternative monitoringsystem, alternative reference 
method, or any other alternative for therequired continuous emission 
monitoring system without having obtainedprior written approval in 
accordance with Sec. 97.75.
    (2) No owner or operator of a NOX Budget unit 
shalloperate the unit so as to discharge, or allow to be 
discharged,NOX emissions to the atmosphere without accounting 
for allsuch emissions in accordance with the applicable provisions of 
thissubpart and part 75 of this chapter, except as provided inSec. 
75.74 of this chapter.
    (3) No owner or operator of a NOX Budget unit 
shalldisrupt the continuous emission monitoring system, any 
portionthereof, or any other approved emission monitoring method, and 
therebyavoid monitoring and recording NOX mass 
emissionsdischarged into the atmosphere, except for periods of 
recertificationor periods when calibration, quality assurance testing, 
or maintenanceis performed in accordance with the applicable provisions 
of thissubpart and part 75 of this chapter or except as provided inSec. 
75.74 of this chapter.
    (4) No owner or operator of a NOX Budget unit shallretire 
or permanently discontinue use of the continuous emissionmonitoring 
system, any component thereof, or any other approvedemission monitoring 
system under this subpart, except under any one ofthe following 
circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 97.4(b) or Sec. 97.5 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
permitting authority for use at that unit that providesemission data for 
the same pollutant or parameter as the retired ordiscontinued monitoring 
system; or
    (iii) The NOX authorized account representativesubmits 
notification of the date of certification testing of areplacement 
monitoring system for the retired or discontinuedmonitoring system in 
accordance with Sec. 97.71(b)(2).

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr.30, 2002; 69 
FR 21647, Apr. 21, 2004]



Sec. 97.71  Initial certification and recertification procedures.

    (a) The owner or operator of a NOX Budget unit that 
issubject to an Acid Rain emissions limitation shall comply with 
theinitial certification and recertification procedures of part 75 
ofthis chapter for NOX-diluent CEMS, flow 
monitors,NOX concentration CEMS, or excepted monitoring 
systemsunder appendix E of part 75 of this chapter for NOX. 
underappendix D for heat input, or under Sec. 75.19 forNOX 
and heat input, except that:
    (1) If, prior to January 1, 1998, the Administrator approved 
apetition under Sec. 75.17(a) or (b) of this chapter forapportioning 
the NOX emission rate measured in a commonstack or a petition 
under Sec. 75.66 of this chapter for analternative to a requirement in 
Sec. 75.17 of this chapter,the NOX authorized account 
representative shall resubmitthe petition to the Administrator under 
Sec. 97.75(a) todetermine if the approval applies under the 
NOX BudgetTrading Program.
    (2) For any additional CEMS required under the common 
stackprovisions in Sec. 75.72 of this chapter or for anyNOX 
concentration CEMS used under the provisions ofSec. 75.71(a)(2) of this 
chapter, the owner or operatorshall meet the requirements of paragraph 
(b) of this section.
    (b) The owner or operator of a NOX Budget unit that isnot 
subject to an Acid Rain emissions limitation shall comply with 
thefollowing initial certification and recertification procedures. 
Theowner or operator of such a unit that qualifies to use the low 
massemissions excepted monitoring methodology under Sec. 75.19of this 
chapter or

[[Page 891]]

that qualifies to use an alternativemonitoring system under subpart E of 
part 75 of this chapter shallcomply with the following procedures, as 
modified by paragraph (c) or(d) of this section. The owner or operator 
of a NOX Budgetunit that is subject to an Acid Rain emissions 
limitation and thatrequires additional CEMS under the common stack 
provisions inSec. 75.72 of this chapter or uses a 
NOXconcentration CEMS under Sec. 75.71(a)(2) of this 
chaptershall comply with the following procedures.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each emission monitoring system required bysubpart H 
of part 75 of this chapter (which includes the automateddata acquisition 
and handling system) successfully completes all ofthe initial 
certification testing required under Sec. 75.20of this chapter by the 
applicable deadline in Sec. 97.70(b).In addition, whenever the owner or 
operator installs an emissionmonitoring system in order to meet the 
requirements of this part in alocation where no such emission monitoring 
system was previouslyinstalled, initial certification in accordance 
withSec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in a certifiedemission 
monitoring system that may significantly affect the abilityof the system 
to accurately measure or record NOX massemissions or heat 
input rate or to meet the requirements ofSec. 75.21 of this chapter or 
appendix B to part 75 of thischapter, the owner or operator shall 
recertify the emission monitoringsystem in accordance with Sec. 
75.20(b) of this chapter.Furthermore, whenever the owner or operator 
makes a replacement,modification, or change to the flue gas handling 
system or the unit'soperation that may significantly change the stack 
flow orconcentration profile, the owner or operator shall recertify 
thecontinuous emissions monitoring system in accordance withSec. 
75.20(b) of this chapter. Examples of changes thatrequire 
recertification include: replacement of the analyzer, 
completereplacement of an existing continuous emission monitoring 
system, orchange in location or orientation of the sampling probe or 
site.
    (3) Certification approval process for initial certificationand 
recertification--(i) Notification of certification.The NOX 
authorized account representative shall submit tothe Administrator, the 
appropriate EPA Regional Office and thepermitting authority written 
notice of the dates of certification inaccordance with Sec. 97.73.
    (ii) Certification application. The NOXauthorized account 
representative shall submit to the Administrator,the appropriate EPA 
Regional Office and the permitting authority acertification application 
for each emission monitoring system requiredunder subpart H of part 75 
of this chapter. A complete certificationapplication shall include the 
information specified in subpart H ofpart 75 of this chapter.
    (iii) Except for units using the low mass emission 
exceptedmethodology under Sec. 75.19 of this chapter, theprovisional 
certification date for a monitor shall be determined inaccordance with 
Sec. 75.20(a)(3) of this chapter. Aprovisionally certified monitor may 
be used under the NOXBudget Trading Program for a period not 
to exceed 120 days afterreceipt by the Administrator of the complete 
certification applicationfor the monitoring system under paragraph 
(b)(3)(ii) of this section.Data measured and recorded by the 
provisionally certified monitoringsystem, in accordance with the 
requirements of part 75 of thischapter, will be considered valid 
quality-assured data (retroactive tothe date and time of provisional 
certification), provided that theAdministrator does not invalidate the 
provisional certification byissuing a notice of disapproval within 120 
days of receipt of thecomplete certification application by the 
Administrator.
    (iv) Certification application formal approval process. 
TheAdministrator will issue a written notice of approval or 
disapprovalof the certification application to the owner or operator 
within 120days of receipt of the complete certification application 
underparagraph (b)(3)(ii) of this section. In the event the 
Administratordoes not issue such a notice within such 120-day period, 
eachmonitoring system that meets the

[[Page 892]]

applicable performancerequirements of part 75 of this chapter and is 
included in thecertification application will be deemed certified for 
use under theNOX Budget Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then theAdministrator will 
issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. A certificationapplication will 
be considered complete when all of the applicableinformation required to 
be submitted under paragraph (b)(3)(ii) ofthis section has been received 
by the Administrator. If thecertification application is not complete, 
then the Administrator willissue a written notice of incompleteness that 
sets a reasonable dateby which the NOX authorized account 
representative mustsubmit the additional information required to 
complete thecertification application. If the NOX authorized 
accountrepresentative does not comply with the notice of incompleteness 
bythe specified date, then the Administrator may issue a notice 
ofdisapproval under paragraph (b)(3)(iv)(C) of this section. The 120-
dayreview period shall not begin prior to receipt of a 
completecertification application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system or component thereof does not meetthe performance 
requirements of this part, or if the certificationapplication is 
incomplete and the requirement for disapproval underparagraph 
(b)(3)(iv)(B) of this section has been met, then theAdministrator will 
issue a written notice of disapproval of thecertification application. 
Upon issuance of such notice ofdisapproval, the provisional 
certification is invalidated by theAdministrator and the data measured 
and recorded by each uncertifiedmonitoring system shall not be 
considered valid quality-assured databeginning with the date and hour of 
provisional certification (asdefined under Sec. 75.20(a)(3) of this 
chapter). The owneror operator shall follow the procedures for loss of 
certification inparagraph (b)(3)(v) of this section for each monitoring 
system that isdisapproved for initial certification.
    (D) Audit decertification. The Administrator may issue anotice of 
disapproval of the certification status of a monitor inaccordance with 
Sec. 97.72(b).
    (v) Procedures for loss of certification. If theAdministrator issues 
a notice of disapproval of a certificationapplication under paragraph 
(b)(3)(iv)(C) of this section or a noticeof disapproval of certification 
status under paragraph (b)(3)(iv)(D)of this section, then:
    (A) The owner or operator shall substitute the following values,for 
each hour of unit operation during the period of invalid dataspecified 
under Sec. 75.20(a)(4)(iii),Sec. 75.20(b)(5), Sec. 75.20(h)(4), 
orSec. 75.21(e) and continuing until the date and hourspecified under 
Sec. 75.20(a)(5)(i) of this chapter:
    (1) For units that the owner or operator intends to monitoror 
monitors for NOX emission rate and heat input rate orintends 
to determine or determines NOX mass emissionsusing the low 
mass emission excepted methodology underSec. 75.19 of this chapter, the 
maximum potentialNOX emission rate and the maximum potential 
hourly heatinput of the unit; and
    (2) For units that the owner or operator intends to monitoror 
monitors for NOX mass emissions using a 
NOXpollutant concentration monitor and a flow monitor, the 
maximumpotential concentration of NOX and the maximum 
potentialflow rate of the unit under section 2 of appendix A of part 75 
of thischapter.
    (B) The NOX authorized account representative shallsubmit 
a notification of certification retest dates and a newcertification 
application in accordance with paragraphs (b)(3)(i) and(ii) of this 
section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the Administrator's notice of disapproval, no later 
than30 unit operating days after the date of issuance of the notice 
ofdisapproval.
    (c) Initial certification and recertification procedures forlow mass 
emission units using the excepted methodologies

[[Page 893]]

underSec. 75.19 of this chapter. The owner or operator of agas-fired or 
oil-fired unit using the low mass emissions exceptedmethodology under 
Sec. 75.19 of this chapter and not subjectto an Acid Rain emissions 
limitation shall meet the applicable generaloperating requirements of 
Sec. 75.10 of this chapter and theapplicable requirements of Sec. 
75.19 of this chapter. Theowner or operator of such a unit shall also 
meet the applicablecertification and recertification procedures of 
paragraph (b) of thissection, except that the excepted methodology shall 
be deemedprovisionally certified for use under the NOX 
BudgetTrading Program as of the date on which a complete 
certificationapplication is received by the Administrator. The 
methodology shall beconsidered to be certified either upon receipt of a 
written notice ofapproval from the Administrator or, if such notice is 
not provided, atthe end of the Administrator's 120 day review period. 
However, aprovisionally certified or certified low mass emissions 
exceptedmethodology shall not be used to report data under the 
NOXBudget Trading Program prior to the applicable 
commencement datespecified in Sec. 75.19(a)(1)(ii) of this chapter.
    (d) Certification/recertification procedures for 
alternativemonitoring systems. The NOX authorized 
accountrepresentative of each unit not subject to an Acid Rain 
emissionslimitation for which the owner or operator intends to use 
analternative monitoring system approved by the Administrator 
undersubpart E of part 75 of this chapter shall comply with the 
applicablecertification procedures of paragraph (b) of this section 
before usingthe system under the NOX Budget Trading Program. 
TheNOX authorized account representative shall also 
complywith the applicable recertification procedures of paragraph (b) 
ofthis section. Section 75.20(f) of this chapter shall apply to 
suchalternative monitoring system.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21647, Apr.21, 2004]



Sec. 97.72  Out of control periods.

    (a) Whenever any emission monitoring system fails to meet thequality 
assurance or data validation requirements of part 75 of thischapter, 
data shall be substituted using the applicable procedures insubpart D, 
subpart H, appendix D, or appendix E of part 75 of thischapter.
    (b) Audit decertification. Whenever both an audit of anemission 
monitoring system and a review of the initial certificationor 
recertification application reveal that any system should not havebeen 
certified or recertified because it did not meet a particularperformance 
specification or other requirement underSec. 97.71 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the Administrator will issue a notice of disapproval of 
thecertification status of such system. For the purposes of 
thisparagraph, an audit shall be either a field audit or an audit of 
anyinformation submitted to the permitting authority or 
theAdministrator. By issuing the notice of disapproval, the 
Administratorrevokes prospectively the certification status of the 
system. The datameasured and recorded by the system shall not be 
considered validquality-assured data from the date of issuance of the 
notification ofthe revoked certification status until the date and time 
that theowner or operator completes subsequently approved 
initialcertification or recertification tests for the system. The owner 
oroperator shall follow the initial certification or 
recertificationprocedures in Sec. 97.71 for each disapproved system.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21648, Apr.21, 2004]



Sec. 97.73  Notifications.

    (a) The NOX authorized account representative for 
aNOX Budget unit shall submit written notice to 
theAdministrator, the appropriate EPA Regional Office, and the 
permittingauthority in accordance with Sec. 75.61 of this chapter.
    (b) For any unit that does not have an Acid Rain 
emissionslimitation, the permitting authority may waive the requirement 
tonotify the permitting authority in paragraph (a) of this section.

[[Page 894]]



Sec. 97.74  Recordkeeping and reporting.

    (a) General provisions. (1) The NOX authorizedaccount 
representative shall comply with all recordkeeping andreporting 
requirements in this section, with the recordkeeping andreporting 
requirements under Sec. 75.73 of this chapter, andwith the requirements 
of Sec. 97.10(e)(1).
    (2) If the NOX authorized account representative for 
aNOX Budget unit subject to an Acid Rain emissionlimitation 
who signed and certified any submission that is made undersubpart F or G 
of part 75 of this chapter and that includes data andinformation 
required under this subpart or subpart H of part 75 ofthis chapter is 
not the same person as the designated representativeor the alternative 
designated representative for the unit under part72 of this chapter, 
then the submission must also be signed by thedesignated representative 
or the alternative designatedrepresentative.
    (b) Monitoring plans. (1) The owner or operator of a unitsubject to 
an Acid Rain emissions limitation shall comply withrequirements of Sec. 
75.62 of this chapter, except that themonitoring plan shall also include 
all of the information required bysubpart H of part 75 of this chapter.
    (2) The owner or operator of a unit that is not subject to an 
AcidRain emissions limitation shall comply with requirements ofSec. 
75.62 of this chapter, except that the monitoring planis only required 
to include the information required by subpart H ofpart 75 of this 
chapter.
    (c) Certification applications. The NOXauthorized account 
representative shall submit an application to theAdministrator, the 
appropriate EPA Regional Office, and the permittingauthority within 45 
days after completing all initial certification orrecertification tests 
required under Sec. 97.71 includingthe information required under 
subpart H of part 75 of this chapter.
    (d) Quarterly reports. The NOX authorizedaccount 
representative shall submit quarterly reports, as follows:
    (1) If a unit is subject to an Acid Rain emission limitation or 
ifthe owner or operator of the NOX budget unit chooses tomeet 
the annual reporting requirements of this subpart H, theNOX 
authorized account representative shall submit aquarterly report for 
each calendar quarter beginning with:
    (i) For a unit for which the owner or operator intends to apply 
orapplies for the early reduction credits under Sec. 97.43,the calendar 
quarter that covers May 1, 2000 through June 30, 2000.The NOX 
mass emission data shall be recorded and reportedfrom the first hour on 
May 1, 2000; or
    (ii) For a unit that commences operation before January 1, 2003and 
that is not subject to paragraph (d)(1)(i) of this section, thecalendar 
quarter covering May 1, 2003 through June 30, 2003. TheNOX 
mass emission data shall be recorded and reported fromthe first hour on 
May 1, 2003; or
    (iii) For a unit that commences operation on or after January 
1,2003:
    (A) The calendar quarter in which the unit commences operation, 
ifunit operation commences during a control period. The 
NOXmass emission data shall be recorded and reported from the 
date andhour when the unit commences operation; or
    (B) The calendar quarter which includes May 1 through June 30 ofthe 
first control period following the date on which the unitcommences 
operation, if the unit does not commence operation during acontrol 
period. The NOX mass emission data shall berecorded and 
reported from the first hour on May 1 of that controlperiod; or
    (iv) A calendar quarter before the quarter specified in 
paragraph(d)(1)(i), (d)(1)(ii), or (d)(1)(iii)(B) of this section, if 
the owneror operator elects to begin reporting early underSec. 
97.70(c)(3).
    (2) If a NOX budget unit is not subject to an AcidRain 
emission limitation, then the NOX authorized 
accountrepresentative shall either:
    (i) Meet all of the requirements of part 75 related to monitoringand 
reporting NOX mass emissions during the entire yearand meet 
the deadlines specified in paragraph (d)(1) of this section;or
    (ii) Submit quarterly reports, documenting NOX 
massemissions from the unit, only for the period from May 1 
throughSeptember 30 of each year and including the data described 
inSec. 75.74(c)(6) of this chapter. The NOXauthorized 
account representative shall

[[Page 895]]

submit such quarterlyreports, beginning with:
    (A) For a unit for which the owner or operator intends to apply 
orapplies for the early reduction credits under Sec. 97.43,the calendar 
quarter that covers May 1, 2000 through June 30, 2000.The NOX 
mass emission data shall be recorded and reportedfrom the first hour on 
May 1, 2000; or
    (B) For a unit that commences operation before January 1, 2003 
andthat is not subject to paragraph (d)(2)(ii)(A) of this section, 
thecalendar quarter covering May 1, 2003 through June 30, 2003. 
TheNOX mass emission data shall be recorded and reported 
fromthe first hour on May 1, 2003; or
    (C) For a unit that commences operation on or after January 1,2003 
and during a control period, the calendar quarter in which theunit 
commences operation. The NOX mass emission data shallbe 
recorded and reported from the date and hour when the unitcommences 
operation; or
    (D) For a unit that commences operation on or after January 1,2003 
and not during a control period, the calendar quarter whichincludes May 
1 through June 30 of the first control period followingthe date on which 
the unit commences operation. The NOXmass emission data shall 
be recorded and reported from the first houron May 1 of that control 
period.
    (3) The NOX authorized account representative shallsubmit 
each quarterly report to the Administrator within 30 daysfollowing the 
end of the calendar quarter covered by the report.Quarterly reports 
shall be submitted in the manner specified insubpart H of part 75 of 
this chapter and Sec. 75.64 of thischapter.
    (i) For units subject to an Acid Rain emissions limitation,quarterly 
reports shall include all of the data and informationrequired in subpart 
H of part 75 of this chapter for eachNOX Budget unit (or 
group of units using a common stack)and the data and information 
required in subpart G of part 75 of thischapter.
    (ii) For units not subject to an Acid Rain emissions 
limitation,quarterly reports are only required to include all of the 
data andinformation required in subpart H of part 75 of this chapter for 
eachNOX Budget unit (or group of units using a common stack).
    (4) Compliance certification. The NOX authorizedaccount 
representative shall submit to the Administrator a 
compliancecertification in support of each quarterly report based on 
reasonableinquiry of those persons with primary responsibility for 
ensuring thatall of the unit's emissions are correctly and fully 
monitored. Thecertification shall state that:
    (i) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications;
    (ii) For a unit with add-on NOX emission controls andfor 
all hours where data are substituted in accordance withSec. 75.34(a)(1) 
of this chapter, the add-on emissioncontrols were operating within the 
range of parameters listed in thequality assurance/quality control 
program under appendix B of part 75of this chapter and the substitute 
values do not systematicallyunderestimate NOX emissions; and
    (iii) For a unit that is reporting on a control period basis 
underparagraph (d)(2)(ii) of this section, the NOX 
emissionrate and NOX concentration values substituted for 
missingdata under subpart D of part 75 of this chapter are calculated 
usingonly values from a control period and do not 
systematicallyunderestimate NOX emissions.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr.30, 2002; 69 
FR 21648, Apr. 21, 2004]



Sec. 97.75  Petitions.

    (a) The NOX authorized account representative of 
aNOX Budget unit may submit a petition underSec. 75.66 of 
this chapter to the Administrator requestingapproval to apply an 
alternative to any requirement of this subpart.
    (b) Application of an alternative to any requirement of thissubpart 
is in accordance with this subpart only to the extent that thepetition 
is approved by the Administrator under Sec. 75.66of this chapter.

[[Page 896]]



Sec. 97.76  Additional requirements to provide heat input data.

    The owner or operator of a NOX Budget unit thatmonitors 
and reports NOX mass emissions using aNOX 
concentration system and a flow system shall alsomonitor and report heat 
input rate at the unit level using theprocedures set forth in part 75 of 
this chapter.



                   Subpart I_Individual Unit Opt-ins.



Sec. 97.80  Applicability.

    A unit that is in a State (as defined in Sec. 97.2), isnot a 
NOX Budget unit under Sec. 97.4(a), is nota unit exempt 
under Sec. 97.4(b), vents all of its emissionsto a stack, and is 
operating, may qualify to be a NOXBudget opt-in unit under 
this subpart. A unit that is aNOX Budget unit under Sec. 
97.4(a), is coveredby an exemption under Sec. 97.4(b) or Sec. 97.5that 
is in effect, or is not operating is not eligible to be aNOX 
Budget opt-in unit.



Sec. 97.81  General.

    Except otherwise as provided in this part, a NOXBudget 
opt-in unit shall be treated as a NOX Budget unitfor purposes 
of applying subparts A through H of this part.



Sec. 97.82  NOX authorized account representative.

    A unit for which an application for a NOX Budget opt-in 
permit is submitted, or a NOX Budget opt-in unit,located at 
the same source as one or more NOX Budgetunits, shall have 
the same NOX authorized accountrepresentative as such 
NOX Budget units.



Sec. 97.83  Applying for NOX Budget opt-in permit.

    (a) Applying for initial NOX Budget opt-inpermit. In 
order to apply for an initial NOX Budgetopt-in permit, the 
NOX authorized account representativeof a unit qualified 
under Sec. 97.80 may submit to theAdministrator and the permitting 
authority at any time, except asprovided under Sec. 97.86(g):
    (1) A complete NOX Budget permit application underSec. 
97.22;
    (2) A monitoring plan submitted in accordance with subpart H ofthis 
part; and
    (3) A complete account certificate of representation underSec. 
97.13, if no NOX authorized accountrepresentative has been 
previously designated for the unit.
    (b) Duty to reapply. Unless the NOX Budget opt-in permit 
is terminated or revised under Sec. 97.86(e) orSec. 97.87(b)(1)(i), 
the NOX authorized accountrepresentative of a NOX 
Budget opt-in unit shall submit tothe Administrator and permitting 
authority a complete NOXBudget permit application under Sec. 
97.22 to renew theNOX Budget opt-in permit in accordance 
withSec. 97.21(c) and, if applicable, an updated monitoring planin 
accordance with subpart H of this part.



Sec. 97.84  Opt-in process.

    The permitting authority will issue or deny an initialNOX 
Budget opt-in permit for a unit for which anapplication for a 
NOX Budget opt-in permit underSec. 97.83 is submitted, in 
accordance withSec. 97.20 and the following:
    (a) Interim review of monitoring plan. The Administratorwill 
determine, on an interim basis, the sufficiency of the monitoringplan 
accompanying the initial application for a NOX Budgetopt-in 
permit under Sec. 97.83. A monitoring plan issufficient, for purposes 
of interim review, if the plan appears tocontain information 
demonstrating that the NOX emissionsrate and heat input rate 
of the unit are monitored and reported inaccordance with subpart H of 
this part. A determination of sufficiencyshall not be construed as 
acceptance or approval of the unit'smonitoring plan.
    (b) If the Administrator determines that the unit's monitoringplan 
is sufficient under paragraph (a) of this section and aftercompletion of 
monitoring system certification under subpart H of thispart, the 
NOX emissions rate and the heat input of theunit shall be 
monitored and reported in accordance with subpart H ofthis part for one 
full control period during which percent monitordata availability is not 
less than 90 percent and during which theunit is in full compliance with 
any applicable State or Federal

[[Page 897]]

emissions or emissions-related requirements. Solely for purposesof 
applying the requirements in the prior sentence, the unit shall 
betreated as a ``NOX Budget unit'' prior toissuance of a 
NOX Budget opt-in permit covering the unit.
    (c) Based on the information monitored and reported underparagraph 
(b) of this section, the Administrator will calculate theunit's baseline 
heat input, which will equal the unit's total heatinput (in mmBtu) for 
the control period, and the unit's baselineNOX emissions 
rate, which will equal the unit's totalNOX mass emissions (in 
lb) for the control period dividedby the unit's baseline heat input.
    (d) Issuance of draft NOX Budget opt-inpermit for public 
comment. The permitting authority will issue adraft NOX 
Budget opt-in permit for public comment inaccordance with Sec. 97.20.
    (e) Not withstanding paragraphs (a) through (d) of this section,if 
at any time before issuance of a draft NOX Budget opt-in 
permit for public comment for the unit, the Administrator or 
thepermitting authority determines that the unit does not qualify as 
aNOX Budget opt-in unit under Sec. 97.80, thepermitting 
authority will issue a draft denial of a NOXBudget opt-in 
permit for public comment for the unit in accordancewith Sec. 97.20.
    (f) Withdrawal of application for NOX Budgetopt-in 
permit. A NOX authorized account representativeof a unit may 
withdraw its application for an initial NOXBudget opt-in 
permit under Sec. 97.83 at any time prior tothe issuance of the initial 
NOX Budget opt-in permit. Oncethe application for a 
NOX Budget opt-in permit iswithdrawn, a NOX 
authorized account representative wantingto reapply must submit a new 
application for an initialNOX Budget permit under Sec. 
97.83.
    (g) The unit shall be a NOX Budget opt-in unit and 
aNOX Budget unit starting May 1 of the first control 
periodstarting after the issuance of the initial NOX Budget 
opt-in permit by the permitting authority.



Sec. 97.85  NOX Budget opt-in permit contents.

    (a) Each NOX Budget opt-in permit will contain 
allelements required for a complete NOX Budget opt-in 
permitapplication under Sec. 97.22.
    (b) Each NOX Budget opt-in permit is deemed toincorporate 
automatically the definitions of terms underSec. 97.2 and, upon 
recordation by the Administrator undersubpart F or G of this part, every 
allocation, transfer, or deductionof NOX allowances to or 
from the compliance accounts ofeach NOX Budget opt-in unit 
covered by the NOXBudget opt-in permit or the overdraft 
account of the NOXBudget source where the NOX 
Budget opt-in unit is located.



Sec. 97.86  Withdrawal from NOX Budget Trading Program.

    (a) Requesting withdrawal. To withdraw from theNOX Budget 
Trading Program, the NOX authorizedaccount representative of 
a NOX Budget opt-in unit shallsubmit to the Administrator and 
the permitting authority a request towithdraw effective as of a 
specified date prior to May 1 or afterSeptember 30. The submission shall 
be made no later than 90 days priorto the requested effective date of 
withdrawal.
    (b) Conditions for withdrawal. Before a NOXBudget opt-in 
unit covered by a request under paragraph (a) of thissection may 
withdraw from the NOX Budget Trading Programand the 
NOX Budget opt-in permit may be terminated underparagraph (e) 
of this section, the following conditions must be met:
    (1) For the control period immediately before the withdrawal is tobe 
effective, the NOX authorized account representativemust 
submit or must have submitted to the Administrator and thepermitting 
authority an annual compliance certification report inaccordance with 
Sec. 97.30.
    (2) If the NOX Budget opt-in unit has excess emissionsfor 
the control period immediately before the withdrawal is to beeffective, 
the Administrator will deduct or has deducted from theNOX 
Budget opt-in unit's compliance account, or theoverdraft account of the 
NOX Budget source where theNOX Budget opt-in unit 
is located, the full amountrequired under Sec. 97.54(d) for the control 
period.
    (3) After the requirements for withdrawal under paragraphs (b)(1)and 
(2)

[[Page 898]]

of this section are met, the Administrator will deductfrom the 
NOX Budget opt-in unit's compliance account, orthe overdraft 
account of the NOX Budget source where theNOX 
Budget opt-in unit is located, NOXallowances equal in number 
to and allocated for the same or a priorcontrol period as any 
NOX allowances allocated to thatsource under Sec. 97.88 for 
any control period for which thewithdrawal is to be effective. The 
Administrator will close theNOX Budget opt-in unit's 
compliance account and transferany remaining allowances to a general 
account specified by the ownersand operators of the NOX 
Budget opt-in unit.
    (c) A NOX Budget opt-in unit that withdraws from 
theNOX Budget Trading Program shall comply with 
allrequirements under the NOX Budget Trading 
Programconcerning all years for which such NOX Budget opt-in 
unitwas a NOX Budget opt-in unit, even if such 
requirementsarise or must be complied with after the withdrawal takes 
effect.
    (d) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of NOX allowances required),the Administrator 
will issue a notification to the permittingauthority and the 
NOX authorized account representative ofthe NOX 
Budget opt-in unit of the acceptance of thewithdrawal of the 
NOX Budget opt-in unit as of a specifiedeffective date that 
is after such requirements have been met and thatis prior to May 1 or 
after September 30.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the Administrator will issue anotification 
to the permitting authority and the NOXauthorized account 
representative of the NOX Budget opt-inunit that the request 
to withdraw is denied. If the NOXBudget opt-in unit's request 
to withdraw is denied, theNOX Budget opt-in unit shall remain 
subject to therequirements for a NOX Budget opt-in unit.
    (e) Permit revision. After the Administrator issues anotification 
under paragraph (d)(1) of this section that therequirements for 
withdrawal have been met, the permitting authoritywill revise the 
NOX Budget permit covering theNOX Budget opt-in 
unit to terminate the NOXBudget opt-in permit as of the 
effective date specified underparagraph (d)(1) of this section. A 
NOX Budget opt-in unitshall continue to be a NOX 
Budget opt-in unit until theeffective date of the termination.
    (f) Reapplication upon failure to meet conditions ofwithdrawal. If 
the Administrator denies the request to withdraw theNOX 
Budget opt-in unit, the NOX authorizedaccount representative 
may submit another request to withdraw inaccordance with paragraphs (a) 
and (b) of this section.
    (g) Ability to return to the NOX BudgetTrading Program. Once a 
NOX Budget opt-in unitwithdraws from the NOX 
Budget Trading Program and itsNOX Budget opt-in permit is 
terminated under paragraph (e)of this section, the NOX 
authorized account representativemay not submit another application for 
a NOX Budget opt-inpermit under Sec. 97.83 for the unit 
prior to the date thatis 4 years after the date on which the terminated 
NOXBudget opt-in permit became effective.



Sec. 97.87  Change in regulatory status.

    (a) Notification. When a NOX Budget opt-in unitbecomes a 
NOX Budget unit under Sec. 97.4(a),the NOX 
authorized account representative shall notify inwriting the permitting 
authority and the Administrator of such changein the NOX 
Budget opt-in unit's regulatory status, within30 days of such change.
    (b) Permitting authority's and Administrator's action. (1)(i) When 
the NOX Budget opt-in unit becomes aNOX Budget 
unit under Sec. 97.4(a), thepermitting authority will revise the 
NOX Budget opt-inunit's NOX Budget opt-in permit 
to meet the requirementsof a NOX Budget permit under Sec. 
97.23 as of aneffective date that is the date on which such 
NOX Budgetopt-in unit becomes a NOX Budget unit 
underSec. 97.4(a).
    (ii)(A) The Administrator will deduct from the compliance accountfor 
the NOX Budget unit under paragraph (b)(1)(i) of thissection, 
or the overdraft account of the NOX Budget sourcewhere the 
unit is located, NOX allowances equal in numberto and 
allocated

[[Page 899]]

for the same or a prior control period as:
    (1) Any NOX allowances allocated to theNOX 
Budget unit (as a NOX Budget opt-in unit)under Sec. 97.88 
for any control period after the lastcontrol period during which the 
unit's NOX Budget opt-inpermit was effective; and
    (2) If the effective date of the NOX Budgetpermit 
revision under paragraph (b)(1)(i) of this section is during acontrol 
period, the NOX allowances allocated to theNOX 
Budget unit (as a NOX Budget opt-in unit)under Sec. 97.88 
for the control period multiplied by thenumber of days in the control 
period starting with the effective dateof the permit revision under 
paragraph (b)(1)(i) of this section,divided by the total number of days 
in the control period, and roundedto the nearest whole number of 
NOX allowances asappropriate.
    (B) The NOX authorized account representative shallensure 
that the compliance account of the NOX Budget unitunder 
paragraph (b)(1)(i) of this section, or the overdraft account ofthe 
NOX Budget source where the unit is located, containsthe 
NOX allowances necessary for completion of thededuction under 
paragraph (b)(1)(ii)(A) of this section. If thecompliance account or 
overdraft account does not contain the necessaryNOX 
allowances, the Administrator will deduct the requirednumber of 
NOX allowances, regardless of the control periodfor which 
they were allocated, whenever NOX allowances arerecorded in 
either account.
    (iii)(A) For every control period during which the 
NOXBudget permit revised under paragraph (b)(1)(i) of this 
section is ineffect, the NOX Budget unit under paragraph 
(b)(1)(i) ofthis section will be treated, solely for purposes of 
NOXallowance allocations under Sec. 97.42, as a unit 
thatcommenced operation on the effective date of the 
NOXBudget permit revision under paragraph (b)(1)(i) of this 
section andwill be allocated NOX allowances underSec. 97.42. 
The unit's deadline underSec. 97.84(b) for meeting monitoring 
requirements inaccordance with subpart H of this part shall not be 
changed by thechange in the unit's regulatory status or by the revision 
of theNOX Budget permit under paragraph (b)(1)(i) of 
thissection.
    (B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, ifthe 
effective date of the NOX Budget permit revision 
underparagraph (b)(1)(i) of this section is during a control period, 
thefollowing number of NOX allowances will be allocated tothe 
NOX Budget unit under paragraph (b)(1)(i) of thissection 
under Sec. 97.42 for the control period: the numberof NOX 
allowances otherwise allocated to theNOX Budget unit under 
Sec. 97.42 for the controlperiod multiplied by the number of days in 
the control period startingwith the effective date of the permit 
revision under paragraph (b)(1)(i) of this section, divided by the total 
number of days in thecontrol period, and rounded to the nearest whole 
number ofNOX allowances as appropriate.
    (2)(i) When the NOX authorized account representativeof a 
NOX Budget opt-in unit does not renew itsNOX 
Budget opt-in permit under Sec. 97.83(b),the Administrator will deduct 
from the NOX Budget opt-inunit's compliance account, or the 
overdraft account of theNOX Budget source where the 
NOX Budget opt-inunit is located, NOX allowances 
equal in number to andallocated for the same or a prior control period 
as anyNOX allowances allocated to the NOX 
Budgetopt-in unit under Sec. 97.88 for any control period afterthe last 
control period for which the NOX Budget opt-inpermit is 
effective. The NOX authorized accountrepresentative shall 
ensure that the NOX Budget opt-inunit's compliance account or 
the overdraft account of theNOX Budget source where the 
NOX Budget opt-inunit is located contains the NOX 
allowances necessary forcompletion of such deduction. If the compliance 
account or overdraftaccount does not contain the necessary 
NOX allowances, theAdministrator will deduct the required 
number of NOXallowances, regardless of the control period for 
which they wereallocated, whenever NOX allowances are 
recorded in eitheraccount.
    (ii) After the deduction under paragraph (b)(2)(i) of this sectionis 
completed, the Administrator will close the NOX Budgetopt-in 
unit's compliance account. If any NOX allowancesremain

[[Page 900]]

in the compliance account after completion of suchdeduction and any 
deduction under Sec. 97.54, theAdministrator will close the 
NOX Budget opt-in unit'scompliance account and transfer any 
remaining allowances to a generalaccount specified by the owners and 
operators of the NOXBudget opt-in unit.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21648, Apr.21, 2004]



Sec. 97.88  NOX allowance allocations to opt-in units.

    (a) NOX allotment allocation. (1) By April1 immediately before the 
first control period for which theNOX Budget opt-in permit is 
effective, the Administratorwill determine by order the NOX 
allowance allocations forthe NOX Budget opt-in unit for the 
control period inaccordance with paragraph (b) of this section.
    (2) By no later than April 1, after the first control period 
forwhich the NOX Budget opt-in permit is in effect, and 
April1 of each year thereafter, the Administrator will determine by 
orderthe NOX allowance allocations for the 
NOXBudget opt-in unit for the next control period, in 
accordance withparagraph (b) of this section.
    (3) The Administrator will make available to the public 
eachdetermination of NOX allowance allocations under 
paragraph(a)(1) or (2) of this section and will provide an opportunity 
forsubmission of objections to the determination. Objections shall 
belimited to addressing whether the determination is in accordance 
withparagraph (b) of this section. Based on any such objections, 
theAdministrator will adjust each determination to the extent 
necessaryto ensure that it is in accordance with paragraph (b) of this 
section.
    (b) For each control period for which the NOX Budgetopt-
in unit has an approved NOX Budget opt-in permit, 
theNOX Budget opt-in unit will be allocated 
NOXallowances in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating 
NOXallowance allocations will be the lesser of:
    (i) The unit's baseline heat input determined pursuant toSec. 
97.84(c); or
    (ii) The unit's heat input, as determined in accordance withsubpart 
H of this part, for the control period in the year prior tothe year of 
the control period for which the NOXallocations are being 
calculated.
    (2) The Administrator will allocate NOX allowances tothe 
unit in an amount equaling the heat input determined underparagraph 
(b)(1) of this section multiplied by the lesser of theunit's baseline 
NOX emissions rate determined underSec. 97.84(c) or the most 
stringent State or federalNOX emissions limitation applicable 
to the unit during thecontrol period, divided by 2,000 lb/ton, and 
rounded to the nearestwhole number of NOX allowances as 
appropriate.



                       Subpart J_Appeal Procedures



Sec. 97.90  Appeal procedures.

    The appeal procedures for the NOX Budget TradingProgram 
are set forth in part 78 of this chapter.

[69 FR 21648, Apr. 21, 2004]



      Subpart AA_CAIR NOX Annual Trading ProgramGeneral Provisions



Sec. 97.101  Purpose.

    This subpart and subparts BB through II set forth the 
generalprovisions and the designated representative, permitting, 
allowance,monitoring, and opt-in provisions for the Federal Clean Air 
InterstateRule (CAIR) NOX Annual Trading Program, under 
section 110of the Clean Air Act and Sec. 52.35 of this chapter, as 
ameans of mitigating interstate transport of fine particulates 
andnitrogen oxides.



Sec. 97.102  Definitions.

    The terms used in this subpart and subparts BB through II shallhave 
the meanings set forth in this section as follows:
    Accountnumber means the identification number given by the 
Administratorto each CAIR NOX Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides

[[Page 901]]

air pollution control and emission reductionprogram established by the 
Administrator under title IV of the CAA andparts 72 through 78 of this 
chapter.
    Actual weighted average NOX emission ratemeans, for a NOX 
averaging plan under Sec. 76.11of this chapter and for a year:
    (1) The sum of the products of the actual annual 
averageNOX emission rate and actual annual heat input 
(asdetermined in accordance with part 75 of this chapter) for all 
unitsin the NOX averaging plan for the year; divided by
    (2) The sum of the actual annual heat input (as determined 
inaccordance with part 75 of this chapter) for all units in 
theNOX averaging plan for the year.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRNOX 
allowances, the determination by a permittingauthority or the 
Administrator of the amount of such CAIRNOX allowances to be 
initially credited to a CAIRNOX unit, a new unit set-aside, 
or other entity.
    Allowance transfer deadline means, for a control period,midnight of 
March 1 (if it is a business day), or midnight of thefirst business day 
thereafter (if March 1 is not a business day),immediately following the 
control period and is the deadline by whicha CAIR NOX 
allowance transfer must be submitted forrecordation in a CAIR 
NOX source's compliance account inorder to be used to meet 
the source's CAIR NOX emissionslimitation for such control 
period in accordance withSec. 97.154.
    Alternate CAIR designated representative means, for a 
CAIRNOX source and each CAIR NOX unit at 
thesource, the natural person who is authorized by the owners 
andoperators of the source and all such units at the source, 
inaccordance with subparts BB and II of this part, to act on behalf 
ofthe CAIR designated representative in matters pertaining to the 
CAIRNOX Annual Trading Program. If the CAIR 
NOXsource is also a CAIR SO2 source, then this 
natural personshall be the same person as the alternate CAIR 
designatedrepresentative under the CAIR SO2 Trading Program. 
If theCAIR NOX source is also a CAIR NOX 
OzoneSeason source, then this natural person shall be the same person 
asthe alternate CAIR designated representative under the 
CAIRNOX Ozone Season Trading Program. If the 
CAIRNOX source is also subject to the Acid Rain Program, 
thenthis natural person shall be the same person as the 
alternatedesignated representative under the Acid Rain Program. If the 
CAIRNOX source is also subject to the Hg Budget 
TradingProgram, then this natural person shall be the same person as 
thealternate Hg designated representative under the Hg Budget 
TradingProgram.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions monitoring system approved for use under subpart HH ofthis 
part, designed to interpret and convert individual output signalsfrom 
pollutant concentration monitors, flow monitors, diluent gasmonitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial thinnings, slash, brush, or byproduct from 
conversion oftrees to merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil- or other-fuel-firedcombustion 
device used to produce heat and to transfer heat to

[[Page 902]]

recirculating water, steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BB, FF, and II of this part, to transfer 
andotherwise dispose of CAIR NOX allowances held in 
thegeneral account and, with regard to a compliance account, the 
CAIRdesignated representative of the source.
    CAIR designated representative means, for a CAIRNOX 
source and each CAIR NOX unit at thesource, the natural 
person who is authorized by the owners andoperators of the source and 
all such units at the source, inaccordance with subparts BB and II of 
this part, to represent andlegally bind each owner and operator in 
matters pertaining to the CAIRNOX Annual Trading Program. If 
the CAIR NOXsource is also a CAIR SO2 source, then 
this natural personshall be the same person as the CAIR designated 
representative underthe CAIR SO2 Trading Program. If the CAIR 
NOXsource is also a CAIR NOX Ozone Season source, 
then thisnatural person shall be the same person as the CAIR 
designatedrepresentative under the CAIR NOX Ozone Season 
TradingProgram. If the CAIR NOX source is also subject to 
theAcid Rain Program, then this natural person shall be the same 
personas the designated representative under the Acid Rain Program. If 
theCAIR NOX source is also subject to the Hg Budget 
TradingProgram, then this natural person shall be the same person as the 
Hgdesignated representative under the Hg Budget Trading Program.
    CAIR NOX allowance means a limitedauthorization issued by a 
permitting authority or the Administratorunder subpart EE of this part 
or Sec. 97.188, or underprovisions of a State implementation plan that 
are approved underSec. 51.123(o)(1) or (2) or (p) of this chapter, to 
emit oneton of nitrogen oxides during a control period of the 
specifiedcalendar year for which the authorization is allocated or of 
anycalendar year thereafter under the CAIR NOX Program. 
Anauthorization to emit nitrogen oxides that is not issued under 
subpartEE of this part, Sec. 97.188, or provisions of a 
Stateimplementation plan that are approved under Sec. 51.123(o)(1) or 
(2) or (p) of this chapter shall not be a CAIR NOXallowance.
    CAIR NOX allowance deduction or deductCAIR NOX allowances means the 
permanentwithdrawal of CAIR NOX allowances by the 
Administratorfrom a compliance account, e.g., in order to account for 
aspecified number of tons of total nitrogen oxides emissions from 
allCAIR NOX units at a CAIR NOX source for 
acontrol period, determined in accordance with subpart HH of this 
part,or to account for excess emissions.
    CAIR NOX Allowance Tracking System meansthe system by which the 
Administrator records allocations, deductions,and transfers of CAIR 
NOX allowances under the CAIRNOX Annual Trading 
Program. Such allowances will beallocated, held, deducted, or 
transferred only as whole allowances.
    CAIR NOX Allowance Tracking System accountmeans an account in the 
CAIR NOX Allowance Tracking Systemestablished by the 
Administrator for purposes of recording theallocation, holding, 
transferring, or deducting of CAIRNOX allowances.
    CAIR NOX allowances held or hold CAIRNOX allowances means the CAIR 
NOXallowances recorded by the Administrator, or submitted to 
theAdministrator for recordation, in accordance with subparts FF, GG, 
andII of this part, in a CAIR NOX Allowance Tracking 
Systemaccount.
    CAIR NOX Annual Trading Program means amulti-state nitrogen oxides 
air pollution control and emissionreduction program established by the 
Administrator in accordance withsubparts AA through II of this part 
andSec. Sec. 51.123(p) and 52.35 of this chapter or approvedand 
administered by the Administrator in accordance with subparts AAthrough 
II of part 96 of this chapter and Sec. 51.123(o)(1)or (2) of this 
chapter, as a means of mitigating

[[Page 903]]

interstatetransport of fine particulates and nitrogen oxides.
    CAIR NOX emissions limitation means, for aCAIR NOX 
source, the tonnage equivalent, inNOX emissions in a control 
period, of the CAIRNOX allowances available for deduction for 
the sourceunder Sec. 97.154 (a) and (b) for the control period.
    CAIR NOX Ozone Season source means asource that is subject to the 
CAIR NOX Ozone SeasonTrading Program.
    CAIR NOX Ozone Season Trading Programmeans a multi-state nitrogen 
oxides air pollution control and emissionreduction program established 
by the Administrator in accordance withsubparts AAAA through IIII of 
this part andSec. Sec. 51.123(ee) and 52.35 of this chapter or 
approvedand administered by the Administrator in accordance with 
subparts AAAAthrough IIII of part 96 and Sec. 51.123(aa)(1) or (2) 
(and(bb)(1)), (bb)(2), or (dd) of this chapter, as a means of 
mitigatinginterstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source thatincludes one or more CAIR 
NOX units.
    CAIR NOX unit means a unit that is subjectto the CAIR NOX 
Annual Trading Program underSec. 97.104 and, except for purposes 
ofSec. 97.105 and subpart EE of this part, a CAIRNOX opt-in 
unit under subpart II of this part.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CC of this part, including anypermit revisions, 
specifying the CAIR NOX Annual TradingProgram requirements 
applicable to a CAIR NOX source, toeach CAIR NOX 
unit at the source, and to the owners andoperators and the CAIR 
designated representative of the source andeach such unit.
    CAIR SO2 source means a source that issubject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reductionprogram established by the 
Administrator in accordance with subpartsAAA through III of this part 
and Sec. Sec. 51.124(r) and52.36 of this chapter or approved and 
administered by theAdministrator in accordance with subparts AAA through 
III of part 96of this chapter and Sec. 51.124(o)(1) or (2) of 
thischapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    Certifying official means:
    (1) For a corporation, a president, secretary, treasurer, or vice-
president or the corporation in charge of a principal businessfunction 
or any other person who performs similar policy or decision-making 
functions for the corporation;
    (2) For a partnership or sole proprietorship, a general partner 
orthe proprietor respectively; or
    (3) For a local government entity or State, Federal, or otherpublic 
agency, a principal executive officer or ranking electedofficial.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous state) produced by the mechanical, thermal, orchemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EE of this part, combusting 
anyamount of coal or coal-derived fuel, alone or in combination with 
anyamount of any other fuel, during any year; or
    (2) For purposes of subpart EE of this part, combusting any amountof 
coal or coal-derived fuel, alone or in combination with any amountof any 
other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit, (A) Useful thermalenergy 
not less than 5 percent of total energy output; and

[[Page 904]]

    (B) Useful power that, when added to one-half of usefulthermal 
energy produced, is not less then 42.5 percent of total energyinput, if 
useful thermal energy produced is 15 percent or more oftotal energy 
output, or not less than 45 percent of total energyinput, if useful 
thermal energy produced is less than 15 percent oftotal energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power notless 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and 
aturbine and in which the flue gas resulting from the combustion offuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to generate electricity for sale or use, including testgeneration, 
except as provided in Sec. 97.105 andSec. 97.184(h).
    (i) For a unit that is a CAIR NOX unit underSec. 97.104 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that subsequently undergoes a physical change(other than replacement of 
the unit by a unit at the same source),such date shall remain the date 
of commencement of commercialoperation of the unit, which shall continue 
to be treated as the sameunit.
    (ii) For a unit that is a CAIR NOX unit underSec. 97.104 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that is subsequently replaced by a unit at thesame source (e.g., 
repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1) or (2) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 97.105, for a unit that is not a CAIRNOX 
unit under Sec. 97.104 on the later ofNovember 15, 1990 or the date the 
unit commences commercial operationas defined in paragraph (1) of this 
definition, the unit's date forcommencement of commercial operation 
shall be the date on which theunit becomes a CAIR NOX unit 
under Sec. 97.104.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement of commercial operation, 
and the replacement unit shallbe treated as a separate unit with a 
separate date for commencement ofcommercial operation as defined in 
paragraph (1) or (2) of thisdefinition as appropriate.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 97.184(h).
    (2) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (3) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date shall remainthe replaced 
unit's date of

[[Page 905]]

commencement of operation, and thereplacement unit shall be treated as a 
separate unit with a separatedate for commencement of operation as 
defined in paragraph (1), (2),or (3) of this definition as appropriate, 
except as provided inSec. 97.184(h).
    Common stack means a single flue through which emissionsfrom 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX AllowanceTracking 
System account, established by the Administrator for a 
CAIRNOX source under subpart FF or II of this part, in 
whichany CAIR NOX allowance allocations for the 
CAIRNOX units at the source are initially recorded and 
inwhich are held any CAIR NOX allowances available for usefor 
a control period in order to meet the source's CAIRNOX 
emissions limitation in accordance withSec. 97.154.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at leastonce every 15 minutes 
(using an automated data acquisition andhandling system (DAHS)), a 
permanent record of nitrogen oxidesemissions, stack gas volumetric flow 
rate, stack gas moisture content,and oxygen or carbon dioxide 
concentration (as applicable), in amanner consistent with part 75 of 
this chapter. The following systemsare the principal types of continuous 
emission monitoring systemsrequired under subpart HH of this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consistingof 
a NOX pollutant concentration monitor and an automateddata 
acquisition and handling system and providing a permanent,continuous 
record of NOX emissions, in parts per million(ppm);
    (3) A nitrogen oxides emission rate (or NOX-
diluent)monitoring system, consisting of a NOX 
pollutantconcentration monitor, a diluent gas (CO2 
orO2) monitor, and an automated data acquisition andhandling 
system and providing a permanent, continuous record ofNOX 
concentration, in parts per million (ppm), diluent gasconcentration, in 
percent CO2 or O2, andNOX emission 
rate, in pounds per million British thermalunits (lb/mmBtu);
    (4) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (5) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous 
record ofCO2 emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2,in percent O2.
    Control period means the period beginning January 1 of acalendar 
year, except as provided in Sec. 97.106(c)(2), andending on December 31 
of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the CAIR designated representative and as determinedby the 
Administrator in accordance with subpart HH of this part.
    Excess emissions means any ton of nitrogen oxides emitted bythe CAIR 
NOX units at a CAIR NOX source duringa control 
period that exceeds the CAIR NOX emissionslimitation for the 
source.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including dieselfuel or 
petroleum derivatives such as oil tar) and any recycled orblended 
petroleum products or petroleum by-products used as a fuel

[[Page 906]]

whether in a liquid, solid, or gaseous state.
    General account means a CAIR NOX AllowanceTracking System 
account, established under subpart FF of this part,that is not a 
compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogenerationunit, 
electricity made available for use, including any suchelectricity used 
in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the CAIR designatedrepresentative and 
determined by the Administrator in accordance withsubpart HH of this 
part and excluding the heat derived from preheatedcombustion air, 
recirculated flue gases, or exhaust from othersources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Hg Budget Trading Program means a multi-state Hg airpollution 
control and emission reduction program approved andadministered by the 
Administrator in accordance subpart HHHH of part60 of this chapter and 
Sec. 60.24(h)(6), or established bythe Administrator under section 111 
of the Clean Air Act, as a meansof reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in Btu/hr) that a unit is capable of combusting on a steadystate basis 
as of the initial installation of the unit as specified bythe 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissionslimitation 
means, with regard to a unit, the lowest NOXemissions 
limitation (in terms of lb/mmBtu) that is applicable to theunit under 
State or Federal law, regardless of the averaging period towhich the 
emissions limitation applies.
    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe) that thegenerator is capable of producing on a steady 
state basis and duringcontinuous operation (when not restricted by 
seasonal or otherderatings), such increased maximum

[[Page 907]]

amount as of such completionas specified by the person conducting the 
physical change.
    Oil-fired means, for purposes of subpart EE of this part,combusting 
fuel oil for more than 15.0 percent of the annual heatinput in a 
specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, orsupervises a 
CAIR NOX unit or a CAIR NOXsource and shall 
include, but not be limited to, any holding company,utility system, or 
plant manager of such a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR NOX source or a 
CAIRNOX unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR NOX unit at the source or the CAIR NOXunit;
    (ii) Any holder of a leasehold interest in a CAIR NOXunit 
at the source or the CAIR NOX unit; or
    (iii) Any purchaser of power from a CAIR NOX unit atthe 
source or the CAIR NOX unit under a life-of-the-unit,firm 
power contractual arrangement; provided that, unless expresslyprovided 
for in a leasehold agreement, owner shall not include apassive lessor, 
or a person who has an equitable interest through suchlessor, whose 
rental payments are not based (either directly orindirectly) on the 
revenues or income from such CAIR NOXunit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR NOX 
allowancesheld in the general account and who is subject to the 
bindingagreement for the CAIR authorized account representative to 
representthe person's ownership interest with respect to CAIR 
NOXallowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR NOX Annual Trading Program or, ifno such agency has been 
so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence, by 
the permitting authority or the Administrator inthe regular course of 
business.
    Recordation, record, or recorded means, with regard toCAIR 
NOX allowances, the movement of CAIR NOXallowances 
by the Administrator into or between CAIR NOXAllowance 
Tracking System accounts, for purposes of allocation,transfer, or 
deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regardto a unit, the 
demolishing of a unit, or the permanent shutdown andpermanent disabling 
of a unit, and the construction of another unit(the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance

[[Page 908]]

of technology in widespread commercial use as ofJanuary 1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Serial number means, for a CAIR NOX allowance,the unique 
identification number assigned to each CAIR NOXallowance by 
the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''
    State means one of the States or the District of Columbiathat is 
subject to the CAIR NOX Annual Trading Programpursuant to 
Sec. 52.35 of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR NOX emissions limitation, totaltons of nitrogen 
oxides emissions for a control period shall becalculated as the sum of 
all recorded hourly emissions (or the massequivalent of the recorded 
hourly emission rates) in accordance withsubpart HH of this part, but 
with any remaining fraction of a tonequal to or greater than 0.50 tons 
deemed to equal one ton and anyremaining fraction of a ton less than 
0.50 tons deemed to equal zerotons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:

LHV = HHV - 10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.

    Total energy output means, with regard to a cogenerationunit, the 
sum of useful power and useful thermal energy produced bythe 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).

[[Page 909]]

    Useful thermal energy means, with regard to acogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating ordomestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermalenergy used by 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006; 72 
FR 59206, Oct. 19, 2007]



Sec. 97.103  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BB through II are defined as follows:

Btu--British thermal unit
CO2--carbon dioxide
H2O--water
Hg--mercury
hr--hour
kW--kilowatt electrical
kWh--kilowatt hour
 lb--pound
mmBtu--million Btu
MWe--megawatt electrical
MWh--megawatt hour
NOX--nitrogen oxides
O2--oxygen
ppm--parts per million
scfh--standard cubic feet per hour
SO2--sulfur dioxide
yr--year



Sec. 97.104  Applicability

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR 
NOXunits, and any source that includes one or more such units 
shall be aCAIR NOX source, subject to the requirements of 
thissubpart and subparts BB through HH of this part: any 
stationary,fossil-fuel-fired boiler or stationary, fossil-fuel-fired 
combustionturbine serving at any time, since the later of November 15, 
1990 orthe start-up of the unit's combustion chamber, a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale.
    (2) If a stationary boiler or stationary combustion turbine 
that,under paragraph (a)(1) of this section, is not a CAIR 
NOXunit begins to combust fossil fuel or to serve a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale,the unit shall become a CAIR NOX unit as provided 
inparagraph (a)(1) of this section on the first date on which it 
bothcombusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR NOX units:
    (1)(i) Any unit that is a CAIR NOX unit underparagraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of the unit's potential electric output capacityor 219,000 
MWh, whichever is greater, to any utility powerdistribution system for 
sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR NOX unitstarting on the earlier 
of January 1 after the first calendar yearduring which the unit first no 
longer qualifies as a cogeneration unitor January 1 after the first 
calendar year during which the unit nolonger meets the requirements of 
paragraph (b)(1)(i)(B) of thissection.
    (2)(i) Any unit that is a CAIR NOX unit underparagraph 
(a)(1) or (2) of this section commencing operation beforeJanuary 1, 
1985:

[[Page 910]]

    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX unit under 
paragraph(a)(1) or (2) of this section commencing operation on or after 
January1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the requirements of paragraph (b)(2)(i) or (ii) of this 
sectionfor at least 3 consecutive calendar years, but subsequently no 
longermeets all such requirements, the unit shall become a 
CAIRNOX unit starting on the earlier of January 1 after 
thefirst calendar year during which the unit first no longer qualifies 
asa solid waste incineration unit or January 1 after the first 
3consecutive calendar years after 1990 for which the unit has anaverage 
annual fuel consumption of fossil fuel of 20 percent or more.
    (c) A certifying official of an owner or operator of any unit 
maypetition the Administrator at any time for a determination 
concerningthe applicability, under paragraphs (a) and (b) of this 
section, ofthe CAIR NOX Annual Trading Program to the unit.
    (1) Petition content. The petition shall be in writing andinclude 
the identification of the unit and the relevant facts aboutthe unit. The 
petition and any other documents provided to theAdministrator in 
connection with the petition shall include thefollowing certification 
statement, signed by the certifying official:``I am authorized to make 
this submission on behalf of theowners and operators of the unit for 
which the submission is made. Icertify under penalty of law that I have 
personally examined, and amfamiliar with, the statements and information 
submitted in thisdocument and all its attachments. Based on my inquiry 
of thoseindividuals with primary responsibility for obtaining the 
information,I certify that the statements and information are to the 
best of myknowledge and belief true, accurate, and complete. I am aware 
thatthere are significant penalties for submitting false statements 
andinformation or omitting required statements and information, 
includingthe possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documentsprovided in 
connection with the petition shall be submitted to theDirector of the 
Clean Air Markets Division (or its successor), U.S.Environmental 
Protection Agency, who will act on the petition as theAdministrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a writtenresponse to the 
petition and may request supplemental informationrelevant to such 
petition. The Administrator's determinationconcerning the applicability, 
under paragraphs (a) and (b) of thissection, of the CAIR NOX 
Annual Trading Program to theunit shall be binding on the permitting 
authority unless the petitionor other information or documents provided 
in connection with thepetition are found to have contained significant, 
relevant errors oromissions.



Sec. 97.105  Retired unit exemption.

    (a)(1) Any CAIR NOX unit that is permanently retiredand 
is not a CAIR NOX opt-in unit under subpart II of thispart 
shall be exempt from the CAIR NOX Annual TradingProgram, 
except for the provisions of this section,Sec. Sec. 97.102, 97.103, 
97.104, 97.106(c)(4) through(7), 97.107, 97.108, and subparts BB and EE 
through GG of this part.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR NOX unit ispermanently 
retired. Within 30 days of the unit's permanentretirement, the CAIR 
designated representative shall submit astatement to the permitting 
authority otherwise responsible foradministering any CAIR permit for the 
unit and shall submit a

[[Page 911]]

copy of the statement to the Administrator. The statement shallstate, in 
a format prescribed by the permitting authority, that theunit was 
permanently retired on a specific date and will comply withthe 
requirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCC of this part covering the source at which the unit is located 
toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any nitrogen oxides, starting onthe date that the 
exemption takes effect.
    (2) The Administrator or the permitting authority will allocateCAIR 
NOX allowances under subpart EE of this part to aunit exempt 
under paragraph (a) of this section.
    (3) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain, at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records may be extended for cause, at any time before 
theend of the period, in writing by the permitting authority or 
theAdministrator. The owners and operators bear the burden of proof 
thatthe unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRNOX 
Annual Trading Program concerning all periods forwhich the exemption is 
not in effect, even if such requirements arise,or must be complied with, 
after the exemption takes effect.
    (5) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 97.122for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2009 or thedate on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(5) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(5) of this section to submit a CAIRpermit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the 
CAIRdesignated representative is not required to submit a CAIR 
permitapplication for the unit.
    (7) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HH of this part, a unit 
thatloses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.



Sec. 97.106  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR NOX source required to have atitle V operating 
permit and each CAIR NOX unit requiredto have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 97.122 in accordance with thedeadlines 
specified in Sec. 97.121; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX 
sourcerequired to have a title V operating permit and each 
CAIRNOX unit required to have a title V operating permit 
atthe source shall have a CAIR permit issued by the permitting 
authorityunder subpart CC of this part for the source and operate the

[[Page 912]]

source and the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart II of this part, the owners 
andoperators of a CAIR NOX source that is not 
otherwiserequired to have a title V operating permit and each 
CAIRNOX unit that is not otherwise required to have a title 
Voperating permit are not required to submit a CAIR permit 
application,and to have a CAIR permit, under subpart CC of this part for 
such CAIRNOX source and such CAIR NOX unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR NOX source and each CAIR NOX unitat the 
source shall comply with the monitoring, reporting, andrecordkeeping 
requirements of subpart HH of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HH of this part shall be used to determine 
compliance byeach CAIR NOX source with the CAIR 
NOXemissions limitation under paragraph (c) of this section.
    (c) Nitrogen oxides emission requirements. (1) As of theallowance 
transfer deadline for a control period, the owners andoperators of each 
CAIR NOX source and each CAIRNOX unit at the 
source shall hold, in the source'scompliance account, CAIR 
NOX allowances available forcompliance deductions for the 
control period underSec. 97.154(a) in an amount not less than the tons 
of totalnitrogen oxides emissions for the control period from all 
CAIRNOX units at the source, as determined in accordance 
withsubpart HH of this part.
    (2) A CAIR NOX unit shall be subject to therequirements 
under paragraph (c)(1) of this section for the controlperiod starting on 
the later of January 1, 2009 or the deadline formeeting the unit's 
monitor certification requirements underSec. 97.170(b)(1), (2), or (5) 
and for each control periodthereafter.
    (3) A CAIR NOX allowance shall not be deducted, 
forcompliance with the requirements under paragraph (c)(1) of 
thissection, for a control period in a calendar year before the year 
forwhich the CAIR NOX allowance was allocated.
    (4) CAIR NOX allowances shall be held in, deductedfrom, 
or transferred into or among CAIR NOX AllowanceTracking 
System accounts in accordance with subparts EE, FF, GG, andII of this 
part.
    (5) A CAIR NOX allowance is a limited authorization 
toemit one ton of nitrogen oxides in accordance with the 
CAIRNOX Annual Trading Program. No provision of the 
CAIRNOX Annual Trading Program, the CAIR permit 
application,the CAIR permit, or an exemption under Sec. 97.105 and 
noprovision of law shall be construed to limit the authority of 
theUnited States to terminate or limit such authorization.
    (6) A CAIR NOX allowance does not constitute aproperty 
right.
    (7) Upon recordation by the Administrator under subpart EE, FF,GG, 
or II of this part, every allocation, transfer, or deduction of aCAIR 
NOX allowance to or from a CAIR NOXsource's 
compliance account is incorporated automatically in any CAIRpermit of 
the source.
    (d) Excess emissions requirements. If a CAIR NOXsource 
emits nitrogen oxides during any control period in excess ofthe CAIR 
NOX emissions limitation, then:
    (1) The owners and operators of the source and each 
CAIRNOX unit at the source shall surrender the 
CAIRNOX allowances required for deduction underSec. 
97.154(d)(1) and pay any fine, penalty, or assessmentor comply with any 
other remedy imposed, for the same violations,under the Clean Air Act or 
applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRNOX source and 
each CAIR NOX unit at thesource shall keep on site at the 
source each of the followingdocuments for a period of 5 years from the 
date the document iscreated. This period may be extended for cause, at 
any time before theend of 5 years, in writing by the permitting 
authority or theAdministrator.
    (i) The certificate of representation under Sec. 97.113for the CAIR 
designated representative for the source and each CAIRNOX 
unit at the source and all

[[Page 913]]

documents thatdemonstrate the truth of the statements in the certificate 
ofrepresentation; provided that the certificate and documents shall 
beretained on site at the source beyond such 5-year period until 
suchdocuments are superseded because of the submission of a 
newcertificate of representation under Sec. 97.113 changing theCAIR 
designated representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HH of this part, provided that to the extent that subpart HHof this part 
provides for a 3-year period for recordkeeping, the 3-year period shall 
apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
CAIRNOX Annual Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the CAIR 
NOXAnnual Trading Program or to demonstrate compliance with 
therequirements of the CAIR NOX Annual Trading Program.
    (2) The CAIR designated representative of a CAIR 
NOXsource and each CAIR NOX unit at the source 
shall submitthe reports required under the CAIR NOX Annual 
TradingProgram, including those under subpart HH of this part.
    (f) Liability. (1) Each CAIR NOX source and eachCAIR 
NOX unit shall meet the requirements of the 
CAIRNOX Annual Trading Program.
    (2) Any provision of the CAIR NOX Annual TradingProgram 
that applies to a CAIR NOX source or the CAIRdesignated 
representative of a CAIR NOX source shall alsoapply to the 
owners and operators of such source and of the CAIRNOX units 
at the source.
    (3) Any provision of the CAIR NOX Annual TradingProgram 
that applies to a CAIR NOX unit or the CAIRdesignated 
representative of a CAIR NOX unit shall alsoapply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the 
CAIRNOX Annual Trading Program, a CAIR permit application, 
aCAIR permit, or an exemption under Sec. 97.105 shall beconstrued as 
exempting or excluding the owners and operators, and theCAIR designated 
representative, of a CAIR NOX source orCAIR NOX 
unit from compliance with any other provision ofthe applicable, approved 
State implementation plan, a federallyenforceable permit, or the Clean 
Air Act.



Sec. 97.107  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Annual Trading Program, to begin on theoccurrence 
of an act or event shall begin on the day the act or eventoccurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Annual Trading Program, to begin before 
theoccurrence of an act or event shall be computed so that the 
periodends the day before the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR NOX Annual Trading Program, falls on 
aweekend or a State or Federal holiday, the time period shall beextended 
to the next business day.



Sec. 97.108  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR NOX Annual Trading Program are set forth in part 78of 
this chapter.



      Subpart BB_CAIR Designated Representative for CAIRNOX Sources



Sec. 97.110  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 97.111, each CAIRNOX 
source, including all CAIR NOX units atthe source, shall have 
one and only one CAIR designatedrepresentative, with regard to all 
matters under the CAIRNOX Annual Trading Program concerning 
the source or anyCAIR NOX unit at the source.
    (b) The CAIR designated representative of the CAIR 
NOXsource shall be selected by an agreement binding on the 
owners andoperators of the source and all CAIR NOX units at 
thesource and shall act in accordance with the certification statement 
inSec. 97.113(a)(4)(iv).

[[Page 914]]

    (c) Upon receipt by the Administrator of a completecertificate of 
representation under Sec. 97.113, the CAIRdesignated representative of 
the source shall represent and, by his orher representations, actions, 
inactions, or submissions, legally bindeach owner and operator of the 
CAIR NOX source representedand each CAIR NOX unit 
at the source in all matterspertaining to the CAIR NOX Annual 
Trading Program,notwithstanding any agreement between the CAIR 
designatedrepresentative and such owners and operators. The owners and 
operatorsshall be bound by any decision or order issued to the CAIR 
designatedrepresentative by the permitting authority, the Administrator, 
or acourt regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports willbe 
accepted, and no CAIR NOX Allowance Tracking Systemaccount 
will be established for a CAIR NOX unit at asource, until the 
Administrator has received a complete certificate ofrepresentation under 
Sec. 97.113 for a CAIR designatedrepresentative of the source and the 
CAIR NOX units at thesource.
    (e)(1) Each submission under the CAIR NOX AnnualTrading 
Program shall be submitted, signed, and certified by the CAIRdesignated 
representative for each CAIR NOX source onbehalf of which the 
submission is made. Each such submission shallinclude the following 
certification statement by the CAIR designatedrepresentative: ``I am 
authorized to make this submission onbehalf of the owners and operators 
of the source or units for whichthe submission is made. I certify under 
penalty of law that I havepersonally examined, and am familiar with, the 
statements andinformation submitted in this document and all its 
attachments. Basedon my inquiry of those individuals with primary 
responsibility forobtaining the information, I certify that the 
statements andinformation are to the best of my knowledge and belief 
true, accurate,and complete. I am aware that there are significant 
penalties forsubmitting false statements and information or omitting 
requiredstatements and information, including the possibility of fine 
orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRNOX source or a CAIR NOX unit only if 
thesubmission has been made, signed, and certified in accordance 
withparagraph (e)(1) of this section.



Sec. 97.111  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.113may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 97.113, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.
    (c) Except in this section and Sec. Sec. 97.102,97.110(a) and (d), 
97.112, 97.113, 97.115, 97.151 and 97.182, wheneverthe term ``CAIR 
designated representative'' is used insubparts AA through II of this 
part, the term shall be construed toinclude the CAIR designated 
representative or any alternate CAIRdesignated representative.



Sec. 97.112  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any time upon receipt bythe 
Administrator of a superseding complete certificate ofrepresentation 
under Sec. 97.113. Notwithstanding any suchchange, all representations, 
actions, inactions, and submissions bythe previous CAIR designated 
representative before the time and datewhen the Administrator receives 
the superseding certificate ofrepresentation shall be binding on the new 
CAIR designatedrepresentative

[[Page 915]]

and the owners and operators of the CAIRNOX source and the 
CAIR NOX units at thesource.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under Sec. 97.113.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative and 
theowners and operators of the CAIR NOX source and the 
CAIRNOX units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR NOX source or a CAIRNOX unit is 
not included in the list of owners andoperators in the certificate of 
representation underSec. 97.113, such owner or operator shall be deemed 
to besubject to and bound by the certificate of representation, 
therepresentations, actions, inactions, and submissions of the 
CAIRdesignated representative and any alternate CAIR 
designatedrepresentative of the source or unit, and the decisions and 
orders ofthe permitting authority, the Administrator, or a court, as if 
theowner or operator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR NOX source or a CAIR NOXunit, including 
the addition of a new owner or operator, the CAIRdesignated 
representative or any alternate CAIR designatedrepresentative shall 
submit a revision to the certificate ofrepresentation under Sec. 97.113 
amending the list of ownersand operators to include the change.



Sec. 97.113  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR NOX source, and eachCAIR 
NOX unit at the source, for which the certificate 
ofrepresentation is submitted, including identification and 
nameplatecapacity of each generator served by each such unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
NOXsource and of each CAIR NOX unit at the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR NOX unit at the source.''
    (ii) ``I certify that I have all the necessary authority tocarry out 
my duties and responsibilities under the CAIRNOX Annual 
Trading Program on behalf of the owners andoperators of the source and 
of each CAIR NOX unit at thesource and that each such owner 
and operator shall be fully bound bymy representations, actions, 
inactions, or submissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR NOX unit at the source shall bebound by any order 
issued to me by the Administrator, the permittingauthority, or a court 
regarding the source or unit.''
    (iv) Where there are multiple holders of a legal or equitabletitle 
to, or a leasehold interest in, a CAIR NOX unit, orwhere a 
utility or industrial customer purchases power from a CAIRNOX 
unit under a life-of-the-unit, firm power contractualarrangement, I 
certify that: I have given a written notice of myselection as the `CAIR 
designated representative' or`alternate CAIR designated representative', 
asapplicable, and of the agreement by which I was selected to each 
ownerand operator of the source and of each CAIR NOX unit 
atthe source; and CAIR NOX allowances and proceeds 
oftransactions involving CAIR NOX allowances

[[Page 916]]

will bedeemed to be held or distributed in proportion to each holder's 
legal,equitable, leasehold, or contractual reservation or 
entitlement,except that, if such multiple holders have expressly 
provided for adifferent distribution of CAIR NOX allowances 
by contract,CAIR NOX allowances and proceeds of transactions 
involvingCAIR NOX allowances will be deemed to be held 
ordistributed in accordance with the contract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
certificateof representation shall not be submitted to the permitting 
authorityor the Administrator. Neither the permitting authority nor 
theAdministrator shall be under any obligation to review or evaluate 
thesufficiency of such documents, if submitted.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.114  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 97.113 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
97.113 is received by theAdministrator.
    (b) Except as provided in Sec. 97.112(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
NOX Annual Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR NOX allowance transfers.



Sec. 97.115  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (a) or(b) of this 
section, the CAIR designated representative or alternateCAIR designated 
representative, as appropriate, must submit to theAdministrator a notice 
of delegation, in a format prescribed by theAdministrator, that includes 
the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate

[[Page 917]]

CAIR designated representative, as appropriate, andbefore this notice of 
delegation is superseded by another notice ofdelegation under 40 CFR 
97.115(d) shall be deemed to be an electronicsubmission by me.''
    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 97.115(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
97.115 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of 
thissection shall be effective, with regard to the CAIR 
designatedrepresentative or alternate CAIR designated representative 
identifiedin such notice, upon receipt of such notice by the 
Administrator anduntil receipt by the Administrator of a superseding 
notice ofdelegation submitted by such CAIR designated representative 
oralternate CAIR designated representative, as appropriate. 
Thesuperseding notice of delegation may replace any previously 
identifiedagent, add a new agent, or eliminate entirely any delegation 
ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.



                           Subpart CC_Permits



Sec. 97.120  General CAIR NOX Annual Trading Program permitrequirements.

    (a) For each CAIR NOX source required to have a titleV 
operating permit or required, under subpart II of this part, to havea 
title V operating permit or other federally enforceable permit, 
suchpermit shall include a CAIR permit administered by the 
permittingauthority for the title V operating permit or the 
federallyenforceable permit as applicable. The CAIR portion of the title 
Vpermit or other federally enforceable permit as applicable shall 
beadministered in accordance with the permitting authority's title 
Voperating permits regulations promulgated under part 70 or 71 of 
thischapter or the permitting authority's regulations for other 
federallyenforceable permits as applicable, except as provided otherwise 
bySec. 97.105, this subpart, and subpart II of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRNOX source and the CAIR NOX units at thesource 
covered by the CAIR permit, all applicable CAIR NOXAnnual 
Trading Program, CAIR NOX Ozone Season TradingProgram, and 
CAIR SO2 Trading Program requirements andshall be a complete 
and separable portion of the title V operatingpermit or other federally 
enforceable permit under paragraph (a) ofthis section.



Sec. 97.121  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
NOX source required to have a title V operatingpermit shall 
submit to the permitting authority a complete CAIR permitapplication 
under Sec. 97.122 for the source covering eachCAIR NOX unit 
at the source at least 18 months (or suchlesser time provided by the 
permitting authority) before the later ofJanuary 1, 2009 or the date on 
which the CAIR NOX unitcommences commercial operation, except 
as provided inSec. 97.183(a).
    (b) Duty to reapply. For a CAIR NOX sourcerequired to 
have a title V operating permit, the CAIR designatedrepresentative shall 
submit a complete CAIR permit application underSec. 97.122 for the 
source covering each CAIRNOX unit at the source to renew the 
CAIR permit inaccordance with the permitting authority's title V 
operating permitsregulations addressing permit renewal, except as 
provided inSec. 97.183(b).



Sec. 97.122  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR NOX source for which 
theapplication is submitted, in a format prescribed by the 
permittingauthority:
    (a) Identification of the CAIR NOX source;

[[Page 918]]

    (b) Identification of each CAIR NOX unit at theCAIR 
NOX source; and
    (c) The standard requirements under Sec. 97.106.



Sec. 97.123  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all elements required for a complete CAIR 
permitapplication under Sec. 97.122.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 97.102 and, upon recordationby the 
Administrator under subpart EE, FF, GG, or II of this part,every 
allocation, transfer, or deduction of a CAIR NOXallowance to 
or from the compliance account of the CAIRNOX source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRNOX source's title V operating permit or other 
federallyenforceable permit as applicable.



Sec. 97.124  CAIR permit revisions.

    Except as provided in Sec. 97.123(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subpart DD [Reserved]



                Subpart EE_CAIR NOX Allowance Allocations



Sec. 97.140  State trading budgets.

    The State trading budgets for annual allocations of 
CAIRNOX allowances for the control periods in 2009 
through2014 and in 2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                           State trading
                                           State trading    budget for
                  State                   budget for2009-      2015
                                           2014  (tons)    andthereafter
                                                              (tons)
------------------------------------------------------------------------
Alabama.................................          69,020          57,517
Delaware................................           4,166           3,472
District of Columbia....................             144             120
Florida.................................          99,445          82,871
Georgia.................................          66,321          55,268
Illinois................................          76,230          63,525
Indiana.................................         108,935          90,779
Iowa....................................          32,692          27,243
Kentucky................................          83,205          69,337
Louisiana...............................          35,512          29,593
Maryland................................          27,724          23,104
Michigan................................          65,304          54,420
Minnesota...............................          31,443          26,203
Mississippi.............................          17,807          14,839
Missouri................................          59,871          49,892
New Jersey..............................          12,670          10,558
New York................................          45,617          38,014
North Carolina..........................          62,183          51,819
Ohio....................................         108,667          90,556
Pennsylvania............................          99,049          82,541
South Carolina..........................          32,662          27,219
Tennessee...............................          50,973          42,478
Texas...................................         181,014         150,845
Virginia................................          36,074          30,062
West Virginia...........................          74,220          61,850
Wisconsin...............................          40,759          33,966
                                         -------------------------------
    Total...............................       1,521,707       1,268,091
------------------------------------------------------------------------



Sec. 97.141  Timing requirements for CAIR NOX allowance allocations.

    (a) The Administrator will determine by order the CAIRNOX 
allowance allocations, in accordance withSec. 97.142(a) and (b), for 
the control periods in 2009,2010, 2011, 2012, 2013, and 2014.
    (b) By July 31, 2011 and July 31 of each year thereafter, 
theAdministrator will determine by order the CAIR 
NOXallowance allocations, in accordance with Sec. 97.142(a) 
and(b), for the control period in the fourth year after the year of 
theapplicable deadline for determination under this paragraph.
    (c) By July 31, 2009 and July 31 of each year thereafter, 
theAdministrator will determine by order the CAIR 
NOXallowance allocations, in accordance withSec. 
97.142(a),(c), and (d), for the control period in theyear of the 
applicable deadline for determination under thisparagraph.
    (d) The Administrator will make available to the public 
eachdetermination of CAIR NOX allowances under paragraph 
(a),(b), or (c) of this section and will provide an opportunity 
forsubmission of objections to the determination. Objections shall 
belimited to addressing whether the determination is in accordance 
withSec. 97.142.

[[Page 919]]

Based on any such objections, theAdministrator will adjust each 
determination to the extent necessaryto ensure that it is in accordance 
with Sec. 97.142.



Sec. 97.142  CAIR NOX allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect toCAIR 
NOX allowance allocations under paragraph (b) of thissection 
for each CAIR NOX unit will be:
    (i) For units commencing operation before January 1, 2001 theaverage 
of the 3 highest amounts of the unit's adjusted control periodheat input 
for 2000 through 2004, with the adjusted control periodheat input for 
each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 60 percent; and
    (C) If the unit is not subject to paragraph (a)(1)(i)(A) or (B) 
ofthis section, the unit's control period heat input for such year 
ismultiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001and 
operating each calendar year during a period of 5 or moreconsecutive 
calendar years, the average of the 3 highest amounts ofthe unit's total 
converted control period heat input over the firstsuch 5 years.
    (2)(i) A unit's control period heat input, and a unit's status 
ascoal-fired or oil-fired, for a calendar year under paragraph 
(a)(1)(i)of this section, and a unit's total tons of NOX 
emissionsduring a calendar year under paragraph (c)(3) of this section, 
will bedetermined in accordance with part 75 of this chapter, to the 
extentthe unit was otherwise subject to the requirements of part 75 of 
thischapter for the year, or will be based on the best available 
datareported to the Administrator for the unit (in a format prescribed 
bythe Administrator), to the extent the unit was not otherwise subjectto 
the requirements of part 75 of this chapter for the year.
    (ii) A unit's converted control period heat input for a calendaryear 
specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of 
thissection, the control period gross electrical output of the 
generatoror generators served by the unit multiplied by 7,900 Btu/kWh, 
if theunit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is 
notcoal-fired for the year, and divided by 1,000,000 Btu/mmBtu, 
providedthat if a generator is served by 2 or more units, then the 
grosselectrical output of the generator will be attributed to each unit 
inproportion to the unit's share of the total control period heat 
inputof such units for the year;
    (B) For a unit that is a boiler and has equipment used to 
produceelectricity and useful thermal energy for industrial, 
commercial,heating, or cooling purposes through the sequential use of 
energy, thetotal heat energy (in Btu) of the steam produced by the 
boiler duringthe control period, divided by 0.8 and by 1,000,000 Btu/
mmBtu; or
    (C) For a unit that is a combustion turbine and has equipment usedto 
produce electricity and useful thermal energy for industrial,commercial, 
heating, or cooling purposes through the sequential use ofenergy, the 
control period gross electrical output of the encloseddevice comprising 
the compressor, combustor, and turbine multiplied by3,413 Btu/kWh, plus 
the total heat energy (in Btu) of the steamproduced by any associated 
heat recovery steam generator during thecontrol period divided by 0.8, 
and with the sum divided by 1,000,000Btu/mmBtu.
    (iii) Gross electrical output and total heat energy underparagraph 
(a)(2)(ii) of this section will be determined based on thebest available 
data reported to the Administrator for the unit (in aformat prescribed 
by the Administrator).
    (3) The Administrator will determine what data are the bestavailable 
data under paragraph (a)(2) of this section by weighing thelikelihood 
that data are accurate and reliable and giving greaterweight to data 
submitted to a governmental entity in compliance withlegal requirements 
or substantiated by an independent entity.

[[Page 920]]

    (b)(1) For each control period in 2009 and thereafter, 
theAdministrator will allocate to all CAIR NOX units in 
aState that have a baseline heat input (as determined under paragraph(a) 
of this section) a total amount of CAIR NOX allowancesequal 
to 95 percent for a control period during 2009 through 2014, and97 
percent for a control period during 2015 and thereafter, of thetons of 
NOX emissions in the applicable State tradingbudget under 
Sec. 97.140 (except as provided in paragraphs(d) and (e) of this 
section).
    (2) The Administrator will allocate CAIR NOXallowances to 
each CAIR NOX unit under paragraph (b)(1) ofthis section in 
an amount determined by multiplying the total amountof CAIR 
NOX allowances allocated under paragraph (b)(1) ofthis 
section by the ratio of the baseline heat input of such 
CAIRNOX unit to the total amount of baseline heat input of 
allsuch CAIR NOX units in the State and rounding to 
thenearest whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, theAdministrator 
will allocate CAIR NOX allowances to CAIRNOX units 
in a State that are not allocated CAIRNOX allowances under 
paragraph (b) of this section becausethe units do not yet have a 
baseline heat input under paragraph (a) ofthis section or because the 
units have a baseline heat input but allCAIR NOX allowances 
available under paragraph (b) of thissection for the control period are 
already allocated, in accordancewith the following procedures:
    (1) The Administrator will establish a separate new unit set-
asidefor each control period. Each new unit set-aside will be 
allocatedCAIR NOX allowances equal to 5 percent for a 
controlperiod in 2009 through 2014, and 3 percent for a control period 
in2015 and thereafter, of the amount of tons of NOXemissions 
in the applicable State trading budget underSec. 97.140.
    (2) The CAIR designated representative of such a CAIRNOX 
unit may submit to the Administrator a request, in aformat specified by 
the Administrator, to be allocated CAIRNOX allowances, 
starting with the later of the controlperiod in 2009 or the first 
control period after the control period inwhich the CAIR NOX 
unit commences commercial operation anduntil the first control period 
for which the unit is allocated CAIRNOX allowances under 
paragraph (b) of this section. Aseparate CAIR NOX allowance 
allocation request for eachcontrol period for which CAIR NOX 
allowances are soughtmust be submitted on or before May 1 of such 
control period and afterthe date on which the CAIR NOX unit 
commences commercialoperation.
    (3) In a CAIR NOX allowance allocation request 
underparagraph (c)(2) of this section, the CAIR designated 
representativemay request for a control period CAIR NOX 
allowances in anamount not exceeding the CAIR NOX unit's 
total tons ofNOX emissions during the calendar year 
immediately beforesuch control period.
    (4) The Administrator will review each CAIR NOXallowance 
allocation request under paragraph (c)(2) of this sectionand will 
allocate CAIR NOX allowances for each controlperiod pursuant 
to such request as follows:
    (i) The Administrator will accept an allowance allocation 
requestonly if the request meets, or is adjusted by the Administrator 
asnecessary to meet, the requirements of paragraphs (c)(2) and (3) 
ofthis section.
    (ii) On or after May 1 of the control period, the Administratorwill 
determine the sum of the CAIR NOX allowancesrequested (as 
adjusted under paragraph (c)(4)(i) of this section) inall allowance 
allocation requests accepted under paragraph (c)(4)(i)of this section 
for the control period.
    (iii) If the amount of CAIR NOX allowances in the newunit 
set-aside for the control period is greater than or equal to thesum 
under paragraph (c)(4)(ii) of this section, then the Administratorwill 
allocate the amount of CAIR NOX allowances requested(as 
adjusted under paragraph (c)(4)(i) of this section) to each 
CAIRNOX unit covered by an allowance allocation 
requestaccepted under paragraph (c)(4)(i) of this section.
    (iv) If the amount of CAIR NOX allowances in the newunit 
set-aside for the control period is less than the sum underparagraph 
(c)(4)(ii) of this section, then the Administrator willallocate to each 
CAIR NOX unit covered by

[[Page 921]]

anallowance allocation request accepted under paragraph (c)(4)(i) ofthis 
section the amount of the CAIR NOX allowancesrequested (as 
adjusted under paragraph (c)(4)(i) of this section),multiplied by the 
amount of CAIR NOX allowances in the newunit set-aside for 
the control period, divided by the sum determinedunder paragraph 
(c)(4)(ii) of this section, and rounded to the nearestwhole allowance as 
appropriate.
    (v) The Administrator will notify each CAIR designatedrepresentative 
that submitted an allowance allocation request of theamount of CAIR 
NOX allowances (if any) allocated for thecontrol period to 
the CAIR NOX unit covered by therequest.
    (d) If, after completion of the procedures under paragraph (c)(4)of 
this section for a control period, any unallocated CAIRNOX 
allowances remain in the new unit set-aside underparagraph (c) of this 
section for a State for the control period, theAdministrator will 
allocate to each CAIR NOX unit that wasallocated CAIR 
NOX allowances under paragraph (b) of thissection in the 
State an amount of CAIR NOX allowancesequal to the total 
amount of such remaining unallocated CAIRNOX allowances, 
multiplied by the unit's allocation underparagraph (b) of this section, 
divided by 95 percent for a controlperiod during 2009 through 2014, and 
97 percent for a control periodduring 2015 and thereafter, of the amount 
of tons of NOXemissions in the applicable State trading 
budget underSec. 97.140, and rounded to the nearest whole allowance 
asappropriate.
    (e) If the Administrator determines that CAIR 
NOXallowances were allocated under paragraphs (a) and (b) of 
thissection, paragraphs (a) and (c) of this section, or paragraph (d) 
ofthis section for a control period and that the recipient of 
theallocation is not actually a CAIR NOX unit underSec. 
97.104 in such control period, then the Administratorwill notify the 
CAIR designated representative and will act inaccordance with the 
following procedures:
    (1) Except as provided in paragraph (e)(2) or (3) of this 
section,the Administrator will not record such CAIR NOX 
allowancesunder Sec. 97.153.
    (2) If the Administrator already recorded such CAIRNOX 
allowances under Sec. 97.153 and if theAdministrator makes such 
determination before making deductions forthe source that includes such 
recipient under Sec. 97.154(b)for the control period, then the 
Administrator will deduct from theaccount in which such CAIR 
NOX allowances were recordedunder Sec. 97.153 an amount of 
CAIR NOXallowances allocated for the same or a prior control 
period equal tothe amount of such already recorded CAIR NOX 
allowances.The CAIR designated representative shall ensure that there 
aresufficient CAIR NOX allowances in such account 
forcompletion of the deduction.
    (3) If the Administrator already recorded such CAIRNOX 
allowances under Sec. 97.153 and if theAdministrator makes such 
determination after making deductions for thesource that includes such 
recipient under Sec. 97.154(b) forthe control period, then the 
Administrator will apply paragraph (e)(1)or (2) of this section, as 
appropriate, to any subsequent controlperiod for which CAIR 
NOX allowances were allocated tosuch recipient.
    (4) The Administrator will transfer the CAIR 
NOXallowances that are not recorded, or that are deducted, in 
accordancewith paragraphs (e)(1), (2), and (3) of this section to a new 
unitset-aside for the State in which such recipient is located.



Sec. 97.143  Compliance supplement pool.

    (a) In addition to the CAIR NOX allowances allocatedunder 
Sec. 97.142, the Administrator may allocate for thecontrol period in 
2009 up to the following amount of CAIRNOX allowances to CAIR 
NOX units in therespective State:

------------------------------------------------------------------------
                                                           Compliance
                         State                           supplement pool
------------------------------------------------------------------------
Alabama...............................................            10,166
Delaware..............................................               843
District of Columbia..................................                 0
Florida...............................................             8,335
Georgia...............................................            12,397
Illinois..............................................            11,299
Indiana...............................................            20,155
Iowa..................................................             6,978
Kentucky..............................................            14,935
Louisiana.............................................             2,251
Maryland..............................................             4,670
Michigan..............................................             8,347

[[Page 922]]

 
Minnesota.............................................             6,528
Mississippi...........................................             3,066
Missouri..............................................             9,044
New Jersey............................................               660
New York..............................................                 0
North Carolina........................................                 0
Ohio..................................................            25,037
Pennsylvania..........................................            16,009
South Carolina........................................             2,600
Tennessee.............................................             8,944
Texas.................................................               772
Virginia..............................................             5,134
West Virginia.........................................            16,929
Wisconsin.............................................             4,898
                                                       -----------------
    Total.............................................           199,997
------------------------------------------------------------------------

    (b) For any CAIR NOX unit in a State, if the 
unit'saverage annual NOX emission rate for 2007 or 2008 is 
lessthan 0.25 lb/mmBtu and, where such unit is included in 
aNOX averaging plan under Sec. 76.11 of thischapter under 
the Acid Rain Program for such year, the unit'sNOX averaging 
plan has an actual weighted averageNOX emission rate for such 
year equal to or less than theactual weighted average NOX 
emission rate for the yearbefore such year and if the unit achieves 
NOX emissionreductions in 2007 and 2008, the CAIR designated 
representative of theunit may request early reduction credits, and 
allocation of CAIRNOX allowances from the compliance 
supplement pool underparagraph (a) of this section for such early 
reduction credits, inaccordance with the following:
    (1) The owners and operators of such CAIR NOX unitshall 
monitor and report the NOX emissions rate and theheat input 
of the unit in accordance with subpart HH of this part ineach control 
period for which early reduction credit is requested.
    (2) The CAIR designated representative of such CAIRNOX 
unit shall submit to the Administrator by May 1, 2009a request, in a 
format specified by the Administrator, for allocationof an amount of 
CAIR NOX allowances from the compliancesupplement pool not 
exceeding the sum of the unit's heat input for thecontrol period in 2007 
multiplied by the difference (if any greaterthan zero) between 0.25 lb/
mmBtu and the unit's NOXemission rate for the control period 
in 2007 plus the unit's heatinput for the control period in 2008 
multiplied by the difference (ifany greater than zero) between 0.25 lb/
mmBtu and the unit'sNOX emission rate for the control period 
in 2008,determined in accordance with subpart HH of this part and with 
the sumdivided by 2,000 lb/ton and rounded to the nearest whole number 
oftons as appropriate.
    (c) For any CAIR NOX unit in a State whose compliancewith 
the CAIR NOX emissions limitation for the controlperiod in 
2009 would create an undue risk to the reliability ofelectricity supply 
during such control period, the CAIR designatedrepresentative of the 
unit may request the allocation of CAIRNOX allowances from 
the compliance supplement pool underparagraph (a) of this section, in 
accordance with the following:
    (1) The CAIR designated representative of such CAIRNOX 
unit shall submit to the Administrator by May 1, 2009a request, in a 
format specified by the Administrator, for allocationof an amount of 
CAIR NOX allowances from the compliancesupplement pool not 
exceeding the minimum amount of CAIRNOX allowances necessary 
to remove such undue risk to thereliability of electricity supply.
    (2) In the request under paragraph (c)(1) of this section, theCAIR 
designated representative of such CAIR NOX unit 
shalldemonstrate that, in the absence of allocation to the unit of 
theamount of CAIR NOX allowances requested, the 
unit'scompliance with the CAIR NOX emissions limitation for 
thecontrol period in 2009 would create an undue risk to the 
reliabilityof electricity supply during such control period. This 
demonstrationmust include a showing that it would not be feasible for 
the ownersand operators of the unit to:
    (i) Obtain a sufficient amount of electricity from otherelectricity 
generation facilities, during the installation of controltechnology at 
the unit for compliance with the CAIR NOXemissions 
limitation, to prevent such undue risk; or
    (ii) Obtain under paragraphs (b) and (d) of this section, 
orotherwise obtain, a sufficient amount of CAIR NOXallowances 
to prevent such undue risk.
    (d) The Administrator will review each request under paragraph (b)or 
(c)

[[Page 923]]

of this section submitted by May 1, 2009 and will allocateCAIR 
NOX allowances for the control period in 2009 to 
CAIRNOX units in a State and covered by such request 
asfollows:
    (1) Upon receipt of each such request, the Administrator will 
makeany necessary adjustments to the request to ensure that the amount 
ofthe CAIR NOX allowances requested meets the requirementsof 
paragraph (b) or (c) of this section.
    (2) If the State's compliance supplement pool under paragraph (a)of 
this section has an amount of CAIR NOX allowances notless 
than the total amount of CAIR NOX allowances in allsuch 
requests (as adjusted under paragraph (d)(1) of this section),the 
Administrator will allocate to each CAIR NOX unitcovered by 
such requests the amount of CAIR NOX allowancesrequested (as 
adjusted under paragraph (d)(1) of this section).
    (3) If the State's compliance supplement pool under paragraph (a)of 
this section has a smaller amount of CAIR NOXallowances than 
the total amount of CAIR NOX allowances inall such requests 
(as adjusted under paragraph (d)(1) of thissection), the Administrator 
will allocate CAIR NOXallowances to each CAIR NOX 
unit covered by such requestsaccording to the following formula and 
rounding to the nearest wholeallowance as appropriate:

Unit's allocation = Unit's adjusted allocation x (State'scompliance 
    supplement pool / Total adjusted allocations forall units)

Where:

``Unit's allocation'' is the amount of CAIRNOX allowances 
allocated to the unit from the State'scompliance supplement pool.
``Unit's adjusted allocation'' is the amount of CAIRNOX 
allowances requested for the unit under paragraph (b)or (c) of this 
section, as adjusted under paragraph (d)(1) of thissection.
``State's compliance supplement pool'' is the amountof CAIR 
NOX allowances in the State's compliancesupplement pool.
``Total adjusted allocations for all units'' is thesum of the amounts of 
allocations requested for all units underparagraph (b) or (c) of this 
section, as adjusted under paragraph (d)(1) of this section.

    (4) By July 31, 2009, the Administrator will determine by orderthe 
allocations under paragraph (d)(2) or (3) of this section. 
TheAdministrator will make available to the public each determination 
ofCAIR NOX allowances under such paragraph and will providean 
opportunity for submission of objections to the determination.Objections 
shall be limited to addressing whether the determination isin accordance 
with paragraph (b) or (c) of this section and paragraph(d)(2) or (3) of 
this section, as appropriate. Based on any suchobjections, the 
Administrator will adjust each determination to theextent necessary to 
ensure that it is in accordance with suchparagraphs.
    (5) By January 1, 2010, the Administrator will record theallocations 
under paragraph (d)(4) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.144  Alternative of allocation of CAIR NOX allowances andcompliance supplement pool by permitting authority.

    (a) Notwithstanding Sec. Sec. 97.141, 97.142, and97.153 if a State 
submits, and the Administrator approves, a Stateimplementation plan 
revision in accordance withSec. 51.123(p)(1) of this chapter providing 
for allocationof CAIR NOX allowances by the permitting 
authority, thenthe permitting authority shall make such allocations in 
accordancewith such approved State implementation plan revision, 
theAdministrator will not make allocations underSec. Sec. 97.141 and 
97.142 for the CAIR NOXunits in the State, and under Sec. 
97.153, the Administratorwill record the allocations made under such 
approved Stateimplementation plan revision instead of allocations made 
underSec. Sec. 97.141 and 97.142.
    (b) Notwithstanding Sec. 97.143, if a State submits, andthe 
Administrator approves, a State implementation plan revision 
inaccordance with Sec. 51.123(p)(2) of this chapter providingfor 
allocation of the State's compliance supplement pool by thepermitting 
authority, then the permitting authority shall make suchallocations in 
accordance with such approved State implementation planrevision, the 
Administrator will not make allocations

[[Page 924]]

underSec. 97.143(d)(4) for the CAIR NOX units in theState, 
and under Sec. 97.143(d)(5), the Administrator willrecord the 
allocations of the State's compliance supplement pool madeunder such 
approved State implementation plan revision instead ofallocations made 
under Sec. 97.143(d)(4).
    (c)(1) In implementing paragraph (a) of this section andSec. Sec. 
97.141, 97.142, and 97.153, the Administratorwill ensure that the total 
amount of CAIR NOX allowancesallocated, under such provisions 
and under a State's Stateimplementation plan revision approved in 
accordance withSec. 51.123(p)(1) of this chapter, for a control period 
forCAIR NOX sources in the State or for other 
entitiesspecified by the permitting authority will not exceed the 
State'sState trading budget for the year of the control period.
    (2) In implementing paragraph (b) of this section andSec. 97.143, 
the Administrator will ensure that the totalamount of CAIR 
NOX allowances allocated, under suchprovisions and under a 
State's State implementation plan revisionapproved in accordance with 
Sec. 51.123(p)(2), for CAIRNOX sources in the State will not 
exceed the State'scompliance supplement pool.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



  Sec. Appendix A to Subpart EE ofPart 97--States With Approved State 
           Implementation PlanRevisions Concerning Allocations


    1. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(p)(1) of this chapter approved by 
theAdministrator and providing for allocation of CAIR 
NOXallowances by the permitting authority under Sec. 
97.144(a):
    Indiana
    Louisiana
    Michigan
    New Jersey
    North Carolina
    Ohio
    South Carolina
    Tennessee
    Texas (for control periods 2009-2014)
    West Virginia (for control periods 2009-2014)
    Wisconsin
    2. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(p)(2) of this chapter approved by 
theAdministrator and providing for allocation of the 
ComplianceSupplement Pool by the permitting authority underSec. 
97.144(b):
    Indiana
    Michigan
    New Jersey
    Ohio
    South Carolina
    Texas

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 41459, July30, 2007; 72 
FR 46394, Aug. 20, 2007; 72 FR 52293, Sept. 13, 2007; 72FR 55068, Sept. 
28, 2007; 72 FR 55672, Oct. 1, 2007; 72 FR 56920,Oct. 5, 2007; 72 FR 
57215, Oct. 9, 2007; 72 FR 58546, Oct. 16, 2007;72 FR 59487, Oct. 22, 
2007; 72 FR 71579, Dec. 18, 2007; 72 FR 72262,Dec. 20, 2007; 73 FR 6040, 
Feb. 1, 2008]



              Subpart FF_CAIR NOX Allowance TrackingSystem



Sec. 97.150  [Reserved]



Sec. 97.151  Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 97.184(e), upon 
receipt of a complete certificate ofrepresentation under Sec. 97.113, 
the Administrator willestablish a compliance account for the CAIR 
NOX source forwhich the certificate of representation was 
submitted, unless thesource already has a compliance account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR NOX allowances.An application for a general 
account may designate one and only oneCAIR authorized account 
representative and one and only one alternateCAIR authorized account 
representative who may act on behalf of theCAIR authorized account 
representative. The agreement by which thealternate CAIR authorized 
account representative is selected shallinclude a procedure for 
authorizing the alternate CAIR authorizedaccount representative to act 
in lieu of the CAIR authorized accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any)

[[Page 925]]

of the CAIRauthorized account representative and any alternate CAIR 
authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR NOX allowances held inthe general account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount representative, as applicable, by an agreement that is 
bindingon all persons who have an ownership interest with respect to 
CAIRNOX allowances held in the general account. I certify 
thatI have all the necessary authority to carry out my duties 
andresponsibilities under the CAIR NOX Annual Trading 
Programon behalf of such persons and that each such person shall be 
fullybound by my representations, actions, inactions, or submissions and 
byany order or decision issued to me by the Administrator or a 
courtregarding the general account.''
    (E) The signature of the CAIR authorized account representativeand 
any alternate CAIR authorized account representative and the 
datessigned.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receiptby 
the Administrator of a complete application for a general accountunder 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR NOX allowances held in the generalaccount in all matters 
pertaining to the CAIR NOX AnnualTrading Program, 
notwithstanding any agreement between the CAIRauthorized account 
representative or any alternate CAIR authorizedaccount representative 
and such person. Any such person shall be boundby any order or decision 
issued to the CAIR authorized accountrepresentative or any alternate 
CAIR authorized account representativeby the Administrator or a court 
regarding the general account.
    (C) Any representation, action, inaction, or submission by 
anyalternate CAIR authorized account representative shall be deemed to 
bea representation, action, inaction, or submission by the 
CAIRauthorized account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to CAIRNOX allowances held in the general account. Each 
suchsubmission shall include the following certification statement by 
theCAIR authorized account representative or any alternate 
CAIRauthorized account representative: ``I am authorized to makethis 
submission on behalf of the persons having an ownership interestwith 
respect to the CAIR NOX allowances held in thegeneral 
account. I certify under penalty of law that I have personallyexamined, 
and am familiar with, the statements and informationsubmitted in this 
document and all its attachments. Based on myinquiry of those 
individuals with primary responsibility for obtainingthe information, I 
certify that the statements and information are tothe best of my 
knowledge and belief true, accurate, and

[[Page 926]]

complete.I am aware that there are significant penalties for submitting 
falsestatements and information or omitting required statements 
andinformation, including the possibility of fine orimprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by the Administrator of a 
superseding complete application fora general account under paragraph 
(b)(1) of this section.Notwithstanding any such change, all 
representations, actions,inactions, and submissions by the previous CAIR 
authorized accountrepresentative before the time and date when the 
Administratorreceives the superseding application for a general account 
shall bebinding on the new CAIR authorized account representative and 
thepersons with an ownership interest with respect to the 
CAIRNOX allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a superseding complete application for a 
generalaccount under paragraph (b)(1) of this section. Notwithstanding 
anysuch change, all representations, actions, inactions, and 
submissionsby the previous alternate CAIR authorized account 
representativebefore the time and date when the Administrator receives 
thesuperseding application for a general account shall be binding on 
thenew alternate CAIR authorized account representative and the 
personswith an ownership interest with respect to the CAIR 
NOXallowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR NOX allowances in the general account 
isnot included in the list of such persons in the application for 
ageneral account, such person shall be deemed to be subject to andbound 
by the application for a general account, the representation,actions, 
inactions, and submissions of the CAIR authorized accountrepresentative 
and any alternate CAIR authorized accountrepresentative of the account, 
and the decisions and orders of theAdministrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR NOX allowances 
inthe general account, including the addition of a new person, the 
CAIRauthorized account representative or any alternate CAIR 
authorizedaccount representative shall submit a revision to the 
application fora general account amending the list of persons having an 
ownershipinterest with respect to the CAIR NOX allowances in 
thegeneral account to include the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.
    (ii) Except as provided in paragraph (b)(3)(i) or (ii) of 
thissection, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternate CAIR authorized account representative or 
thefinality of any decision or order by the Administrator under the 
CAIRNOX Annual Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate

[[Page 927]]

CAIR authorized account representative for ageneral account, including 
private legal disputes concerning theproceeds of CAIR NOX 
allowance transfers.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
theAdministrator provided for or required under subparts FF and GG 
ofthis part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FF and GG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR authorized 
accountrepresentative or alternate CAIR authorized account 
representative;
    (B) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 97.151(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``Until this notice of delegation is supersededby 
another notice of delegation under 40 CFR 97.151(b)(5)(iv), I agreeto 
maintain an e-mail account and to notify the Administratorimmediately of 
any change in my e-mail address unless all delegationof authority by me 
under 40 CFR 97.151(b)(5) is terminated.''.
    (iv) A notice of delegation submitted under paragraph (b)(5)(iii)of 
this section shall be effective, with regard to the CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative, as appropriate. The superseding notice of 
delegationmay replace any previously identified agent, add a new agent, 
oreliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.



Sec. 97.152  Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR NOX 
AllowanceTracking System

[[Page 928]]

account, all submissions to the Administratorpertaining to the account, 
including, but not limited to, submissionsconcerning the deduction or 
transfer of CAIR NOXallowances in the account, shall be made 
only by the CAIR authorizedaccount representative for the account.



Sec. 97.153  Recordation of CAIR NOX allowance allocations.

    (a) By September 30, 2007, the Administrator will record in theCAIR 
NOX source's compliance account the CAIRNOX 
allowances allocated for the CAIR NOXunits at the source in 
accordance with Sec. 97.142(a) and(b) for the control period in 2009.
    (b) By September 30, 2008, the Administrator will record in theCAIR 
NOX source's compliance account the CAIRNOX 
allowances allocated for the CAIR NOXunits at the source in 
accordance with Sec. 97.142(a) and(b) for the control period in 2010.
    (c) By September 30, 2009, the Administrator will record in theCAIR 
NOX source's compliance account the CAIRNOX 
allowances allocated for the CAIR NOXunits at the source in 
accordance with Sec. 97.142(a) and(b) for the control periods in 2011, 
2012, and 2013.
    (d) By December 1, 2010 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX source'scompliance 
account the CAIR NOX allowances allocated forthe CAIR 
NOX units at the source in accordance withSec. 97.142(a) and 
(b) for the control period in the fourthyear after the year of the 
applicable deadline for recordation underthis paragraph.
    (e) By December 1, 2009 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX source'scompliance 
account the CAIR NOX allowances allocated forthe CAIR 
NOX units at the source in accordance withSec. 97.142(a) and 
(c) for the control period in the year ofthe applicable deadline for 
recordation under this paragraph.
    (f) Serial numbers for allocated CAIR NOXallowances. When recording 
the allocation of CAIRNOX allowances for a CAIR 
NOX unit in acompliance account, the Administrator will 
assign each CAIRNOX allowance a unique identification number 
that willinclude digits identifying the year of the control period for 
whichthe CAIR NOX allowance is allocated.



Sec. 97.154  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOXallowances 
are available to be deducted for compliance with a source'sCAIR 
NOX emissions limitation for a control period in agiven 
calendar year only if the CAIR NOX allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR NOX allowance transfercorrectly submitted 
for recordation under Sec. Sec. 97.160and 97.161 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, 
inaccordance with Sec. 97.161, of CAIR NOXallowance 
transfers submitted for recordation in a source's complianceaccount by 
the allowance transfer deadline for a control period, theAdministrator 
will deduct from the compliance account CAIRNOX allowances 
available under paragraph (a) of thissection in order to determine 
whether the source meets the CAIRNOX emissions limitation for 
the control period, asfollows:
    (1) Until the amount of CAIR NOX allowances 
deductedequals the number of tons of total nitrogen oxides 
emissions,determined in accordance with subpart HH of this part, from 
all CAIRNOX units at the source for the control period; or
    (2) If there are insufficient CAIR NOX allowances 
tocomplete the deductions in paragraph (b)(1) of this section, until 
nomore CAIR NOX allowances available under paragraph (a) 
ofthis section remain in the compliance account.
    (c)(1) Identification of CAIR NOX allowancesby serial number. The 
CAIR authorized account representative for asource's compliance account 
may request that specific CAIRNOX allowances, identified by 
serial number, in thecompliance account be deducted for emissions or 
excess emissions for a

[[Page 929]]

control period in accordance with paragraph (b) or (d) of thissection. 
Such request shall be submitted to the Administrator by theallowance 
transfer deadline for the control period and include, in aformat 
prescribed by the Administrator, the identification of the 
CAIRNOX source and the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRNOX allowances under paragraph (b) or (d) of this 
sectionfrom the source's compliance account, in the absence of 
anidentification or in the case of a partial identification of 
CAIRNOX allowances by serial number under paragraph (c)(1) 
ofthis section, on a first-in, first-out (FIFO) accounting basis in 
thefollowing order:
    (i) Any CAIR NOX allowances that were allocated to 
theunits at the source, in the order of recordation; and then
    (ii) Any CAIR NOX allowances that were allocated toany 
entity and transferred and recorded in the compliance accountpursuant to 
subpart GG of this part, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR NOXsource has excess 
emissions, the Administrator will deduct from thesource's compliance 
account an amount of CAIR NOXallowances, allocated for the 
control period in the immediatelyfollowing calendar year, equal to 3 
times the number of tons of thesource's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) ofthis 
section shall not affect the liability of the owners andoperators of the 
CAIR NOX source or the CAIRNOX units at the source 
for any fine, penalty, orassessment, or their obligation to comply with 
any other remedy, forthe same violations, as ordered under the Clean Air 
Act or applicableState law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart II.
    (f) Administrator's action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the 
CAIR NOX Annual Trading Program andmake appropriate 
adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX allowancesfrom 
or transfer CAIR NOX allowances to a source'scompliance 
account based on the information in the submissions, asadjusted under 
paragraph (f)(1) of this section, and record suchdeductions and 
transfers.



Sec. 97.155  Banking.

    (a) CAIR NOX allowances may be banked for future useor 
transfer in a compliance account or a general account in accordancewith 
paragraph (b) of this section.
    (b) Any CAIR NOX allowance that is held in acompliance 
account or a general account will remain in such accountunless and until 
the CAIR NOX allowance is deducted ortransferred under Sec. 
97.142, Sec. 97.154,Sec. 97.156, or subpart GG or II of this part.



Sec. 97.156  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR NOXAllowance 
Tracking System account. Within 10 business days of makingsuch 
correction, the Administrator will notify the CAIR authorizedaccount 
representative for the account.



Sec. 97.157  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
97.160 and 97.161 for any CAIRNOX allowances in the account 
to one or more other CAIRNOX Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
NOX allowances, the Administrator may notify the 
CAIRauthorized account representative for the account that the 
accountwill be closed following 20 business days after the notice is 
sent.The

[[Page 930]]

account will be closed after the 20-day period unless, beforethe end of 
the 20-day period, the Administrator receives a correctlysubmitted 
transfer of CAIR NOX allowances into the accountunder 
Sec. Sec. 97.160 and 97.161 or a statement submittedby the CAIR 
authorized account representative demonstrating to thesatisfaction of 
the Administrator good cause as to why the accountshould not be closed.



                 Subpart GG_CAIR NOX Allowance Transfers



Sec. 97.160  Submission of CAIR NOX allowance transfers.

    A CAIR authorized account representative seeking recordation of 
aCAIR NOX allowance transfer shall submit the transfer tothe 
Administrator. To be considered correctly submitted, the 
CAIRNOX allowance transfer shall include the 
followingelements, in a format specified by the Administrator:
    (a) The account numbers for both the transferor and 
transfereeaccounts;
    (b) The serial number of each CAIR NOX allowance thatis 
in the transferor account and is to be transferred; and
    (c) The name and signature of the CAIR authorized 
accountrepresentative of the transferor account and the date signed.



Sec. 97.161  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) 
ofthis section) of receiving a CAIR NOX allowance 
transfer,the Administrator will record a CAIR NOX 
allowancetransfer by moving each CAIR NOX allowance from 
thetransferor account to the transferee account as specified by 
therequest, provided that:
    (1) The transfer is correctly submitted underSec. 97.160; and
    (2) The transferor account includes each CAIR 
NOXallowance identified by serial number in the transfer.
    (b) A CAIR NOX allowance transfer that is submittedfor 
recordation after the allowance transfer deadline for a controlperiod 
and that includes any CAIR NOX allowances allocatedfor any 
control period before such allowance transfer deadline willnot be 
recorded until after the Administrator completes the deductionsunder 
Sec. 97.154 for the control period immediately beforesuch allowance 
transfer deadline.
    (c) Where a CAIR NOX allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.



Sec. 97.162  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR NOX allowance transfer underSec. 
97.161, the Administrator will notify the CAIRauthorized account 
representatives of both the transferor andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR NOX allowance transfer that fails tomeet 
the requirements of Sec. 97.161(a), the Administratorwill notify the 
CAIR authorized account representatives of bothaccounts subject to the 
transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
NOX allowance transfer for recordation followingnotification 
of non-recordation.



                   Subpart HH_Monitoring and Reporting



Sec. 97.170  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR NOX unit, 
shallcomply with the monitoring, recordkeeping, and reporting 
requirementsas provided in this subpart and in subpart H of part 75 of 
thischapter. For purposes of complying with such requirements, 
thedefinitions in Sec. 97.102 and in Sec. 72.2 ofthis chapter shall 
apply, and the terms ``affected unit,''``designated representative,'' 
and ``continuousemission monitoring system'' or ``CEMS'') in part 75of 
this chapter shall be deemed to refer to the terms ``CAIRNOX 
unit,`` ``CAIR designatedrepresentative,'' and ``continuous emission 
monitoringsystem'' (or ``CEMS'') respectively, as defined inSec. 
97.102. The owner or operator of a unit that is not aCAIR NOX 
unit but that is monitored underSec. 75.72(b)(2)(ii) of this chapter

[[Page 931]]

shall comply withthe same monitoring, recordkeeping, and reporting 
requirements as aCAIR NOX unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR NOX 
unitshall:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass emissions and individual unit 
heatinput (including all systems required to monitor 
NOXemission rate, NOX concentration, stack gas 
moisturecontent, stack gas flow rate, CO2 or 
O2concentration, and fuel flow rate, as applicable, in 
accordance with(Sec. Sec. 75.71 and 75.72 of this chapter);
    (2) Successfully complete all certification tests required 
underSec. 97.171 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet the monitoringsystem 
certification and other requirements of paragraphs (a)(1) and(2) of this 
section on or before the following dates. The owner oroperator shall 
record, report, and quality-assure the data from themonitoring systems 
under paragraph (a)(1) of this section on and afterthe following dates.
    (1) For the owner or operator of a CAIR NOX unit 
thatcommences commercial operation before July 1, 2007, by January 
1,2008.
    (2) For the owner or operator of a CAIR NOX unit 
thatcommences commercial operation on or after July 1, 2007, by the 
laterof the following dates:
    (i) January 1, 2008; or
    (ii) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation.
    (3) For the owner or operator of a CAIR NOX unit forwhich 
construction of a new stack or flue or installation of add-
onNOX emission controls is completed after the 
applicabledeadline under paragraph (b)(1), (2), (4), or (5) of this 
section, by90 unit operating days or 180 calendar days, whichever occurs 
first,after the date on which emissions first exit to the atmosphere 
throughthe new stack or flue or add-on NOX emissions 
controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a unit for which a CAIR opt-
inpermit application is submitted and not withdrawn and a CAIR opt-
inpermit is not yet issued or denied under subpart II of this part, 
bythe date specified in Sec. 97.184(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a CAIR NOX opt-
inunit under subpart II of this part, by the date on which the 
CAIRNOX opt-in unit enters the CAIR NOX 
AnnualTrading Program as provided in Sec. 97.184(g).
    (c) Reporting data. The owner or operator of a CAIRNOX 
unit that does not meet the applicable compliance dateset forth in 
paragraph (b) of this section for any monitoring systemunder paragraph 
(a)(1) of this section shall, for each such monitoringsystem, determine, 
record, and report maximum potential (or, asappropriate, minimum 
potential) values for NOXconcentration, NOX 
emission rate, stack gas flow rate,stack gas moisture content, fuel flow 
rate, and any other parametersrequired to determine NOX mass 
emissions and heat input inaccordance with Sec. 75.31(b)(2) or (c)(3) 
of this chapter,section 2.4 of appendix D to part 75 of this chapter, or 
section 2.5of appendix E to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRNOX 
unit shall use any alternative monitoring system,alternative reference 
method, or any other alternative to anyrequirement of this subpart 
without having obtained prior writtenapproval in accordance with Sec. 
97.175.
    (2) No owner or operator of a CAIR NOX unit shalloperate 
the unit so as to discharge, or allow to be discharged,NOX 
emissions to the atmosphere without accounting for allsuch emissions in 
accordance with the applicable provisions of thissubpart and part 75 of 
this chapter.

[[Page 932]]

    (3) No owner or operator of a CAIR NOX unit shalldisrupt 
the continuous emission monitoring system, any portionthereof, or any 
other approved emission monitoring method, and therebyavoid monitoring 
and recording NOX mass emissionsdischarged into the 
atmosphere or heat input, except for periods ofrecertification or 
periods when calibration, quality assurancetesting, or maintenance is 
performed in accordance with the applicableprovisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX unit shallretire 
or permanently discontinue use of the continuous emissionmonitoring 
system, any component thereof, or any other approvedmonitoring system 
under this subpart, except under any one of thefollowing circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 97.105 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
Administrator for use at that unit that provides emission datafor the 
same pollutant or parameter as the retired or discontinuedmonitoring 
system; or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
97.171(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRNOX unit is subject to the applicable provisions of 
part75 of this chapter concerning units in long-term cold storage.



Sec. 97.171  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR NOX unit shall 
beexempt from the initial certification requirements of this section 
fora monitoring system under Sec. 97.170(a)(1) if the 
followingconditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix B,appendix D, and appendix E 
to part 75 of this chapter are fully metfor the certified monitoring 
system described in paragraph (a)(1) ofthis section.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 97.170(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.
    (c) If the Administrator has previously approved a petition 
underSec. 75.17(a) or (b) of this chapter for apportioning 
theNOX emission rate measured in a common stack or a 
petitionunder Sec. 75.66 of this chapter for an alternative to 
arequirement in Sec. 75.12 or Sec. 75.17 of thischapter, the CAIR 
designated representative shall resubmit thepetition to the 
Administrator under Sec. 97.175 to determinewhether the approval 
applies under the CAIR NOX AnnualTrading Program.
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR NOX unit shall comply with thefollowing 
initial certification and recertification procedures for acontinuous 
monitoring system (i.e., a continuous emissionmonitoring system and an 
excepted monitoring system under appendices Dand E to part 75 of this 
chapter) under Sec. 97.170(a)(1).The owner or operator of a unit that 
qualifies to use the low massemissions excepted monitoring methodology 
under Sec. 75.19of this chapter or that qualifies to use an alternative 
monitoringsystem under subpart E of part 75 of this chapter shall comply 
withthe procedures in paragraph (e) or (f) of this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
97.170(a)(1) (including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 97.170(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial

[[Page 933]]

certificationin accordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in any certifiedcontinuous 
emission monitoring system under Sec. 97.170(a)(1) that may 
significantly affect the ability of the system toaccurately measure or 
record NOX mass emissions or heatinput rate or to meet the 
quality-assurance and quality-controlrequirements of Sec. 75.21 of this 
chapter or appendix B topart 75 of this chapter, the owner or operator 
shall recertify themonitoring system in accordance with Sec. 75.20(b) 
of thischapter. Furthermore, whenever the owner or operator makes 
areplacement, modification, or change to the flue gas handling systemor 
the unit's operation that may significantly change the stack flowor 
concentration profile, the owner or operator shall recertify 
eachcontinuous emission monitoring system whose accuracy is 
potentiallyaffected by the change, in accordance with Sec. 75.20(b) 
ofthis chapter. Examples of changes to a continuous emission 
monitoringsystem that require recertification include replacement of 
theanalyzer, complete replacement of an existing continuous 
emissionmonitoring system, or change in location or orientation of 
thesampling probe or site. Any fuel flowmeter system, and any 
exceptedNOX monitoring system under appendix E to part 75 of 
thischapter, under Sec. 97.170(a)(1) are subject to therecertification 
requirements in Sec. 75.20(g)(6) of thischapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and recertification of acontinuous monitoring system under 
Sec. 97.170(a)(1). Forrecertifications, replace the words 
``certification'' and``initial certification'' with the 
word``recertification'', replace the word``certified'' with the word 
``recertified'',and follow the procedures in Sec. Sec. 75.20(b)(5) and 
(g)(7) of this chapter in lieu of the procedures in paragraph 
(d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the appropriate EPA Regional Office andthe Administrator 
written notice of the dates of certificationtesting, in accordance with 
Sec. 97.173.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the Administrator a certificationapplication for each 
monitoring system. A complete certificationapplication shall include the 
information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined inaccordance with Sec. 
75.20(a)(3) of this chapter. Aprovisionally certified monitoring system 
may be used under the CAIRNOX Annual Trading Program for a 
period not to exceed 120days after receipt by the Administrator of the 
complete certificationapplication for the monitoring system under 
paragraph (d)(3)(ii) ofthis section. Data measured and recorded by the 
provisionallycertified monitoring system, in accordance with the 
requirements ofpart 75 of this chapter, will be considered valid 
quality-assured data(retroactive to the date and time of provisional 
certification),provided that the Administrator does not invalidate the 
provisionalcertification by issuing a notice of disapproval within 120 
days ofthe date of receipt of the complete certification application by 
theAdministrator.
    (iv) Certification application approval process. TheAdministrator 
will issue a written notice of approval or disapprovalof the 
certification application to the owner or operator within 120days of 
receipt of the complete certification application underparagraph 
(d)(3)(ii) of this section. In the event the Administratordoes not issue 
such a notice within such 120-day period, eachmonitoring system that 
meets the applicable performance requirementsof part 75 of this chapter 
and is included in the certificationapplication will be deemed certified 
for use under the CAIRNOX Annual Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then theAdministrator will 
issue a

[[Page 934]]

written notice of approval of thecertification application within 120 
days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the Administrator will issue awritten notice of 
incompleteness that sets a reasonable date by whichthe CAIR designated 
representative must submit the additionalinformation required to 
complete the certification application. If theCAIR designated 
representative does not comply with the notice ofincompleteness by the 
specified date, then the Administrator may issuea notice of disapproval 
under paragraph (d)(3)(iv)(C) of this section.The 120-day review period 
shall not begin before receipt of a completecertification application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the Administratorwill issue a written notice of 
disapproval of the certificationapplication. Upon issuance of such 
notice of disapproval, theprovisional certification is invalidated by 
the Administrator and thedata measured and recorded by each uncertified 
monitoring system shallnot be considered valid quality-assured data 
beginning with the dateand hour of provisional certification (as defined 
underSec. 75.20(a)(3) of this chapter). The owner or operatorshall 
follow the procedures for loss of certification in paragraph (d)(3)(v) 
of this section for each monitoring system that is disapprovedfor 
initial certification.
    (D) Audit decertification. The Administrator may issue anotice of 
disapproval of the certification status of a monitor inaccordance with 
Sec. 97.172(b).
    (v) Procedures for loss of certification. If theAdministrator issues 
a notice of disapproval of a certificationapplication under paragraph 
(d)(3)(iv)(C) of this section or a noticeof disapproval of certification 
status under paragraph (d)(3)(iv)(D)of this section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified under Sec. 75.20(a)(5)(i)or 
(g)(7) of this chapter:
    (1) For a disapproved NOX emission rate(i.e.,, 
NOX-diluent) system, the maximum potentialNOX 
emission rate, as defined in Sec. 72.2 ofthis chapter.
    (2) For a disapproved NOX pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of NOX and the maximumpotential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (4) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (5) For a disapproved excepted NOX monitoringsystem under 
appendix E to part 75 of this chapter, the fuel-specificmaximum 
potential NOX emission rate, as defined inSec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the Administrator's notice of disapproval, no later 
than30 unit operating days after the date of issuance of the notice 
ofdisapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) excepted

[[Page 935]]

methodology under Sec. 75.19 of this chapter shall meetthe applicable 
certification and recertification requirements inSec. Sec. 75.19(a)(2) 
and 75.20(h) of this chapter. If theowner or operator of such a unit 
elects to certify a fuel flowmetersystem for heat input determination, 
the owner or operator shall alsomeet the certification and 
recertification requirements inSec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator under subpart 
E ofpart 75 of this chapter shall comply with the applicable 
notificationand application procedures of Sec. 75.20(f) of this 
chapter.



Sec. 97.172  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D or 
subpart Hof, or appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 97.171 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the Administrator will issue a notice of disapproval of 
thecertification status of such monitoring system. For the purposes 
ofthis paragraph, an audit shall be either a field audit or an audit 
ofany information submitted to the permitting authority or 
theAdministrator. By issuing the notice of disapproval, the 
Administratorrevokes prospectively the certification status of the 
monitoringsystem. The data measured and recorded by the monitoring 
system shallnot be considered valid quality-assured data from the date 
of issuanceof the notification of the revoked certification status until 
the dateand time that the owner or operator completes subsequently 
approvedinitial certification or recertification tests for the 
monitoringsystem. The owner or operator shall follow the applicable 
initialcertification or recertification procedures in Sec. 97.171for 
each disapproved monitoring system.



Sec. 97.173  Notifications.

    The CAIR designated representative for a CAIR NOX 
unitshall submit written notice to the Administrator in accordance 
withSec. 75.61 of this chapter.



Sec. 97.174  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements underSec. 75.73 
of this chapter, and the requirements ofSec. 97.110(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIRNOX 
unit shall comply with requirements ofSec. 75.73(c) and (e) of this 
chapter and, for a unit forwhich a CAIR opt-in permit application is 
submitted and not withdrawnand a CAIR opt-in permit is not yet issued or 
denied under subpart IIof this part, Sec. Sec. 97.183 and 97.184(a).
    (c) Certification applications. The CAIR designatedrepresentative 
shall submit an application to the Administrator within45 days after 
completing all initial certification or recertificationtests required 
under Sec. 97.171, including the informationrequired under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report 
theNOX mass emissions data and heat input data for the 
CAIRNOX unit, in an electronic quarterly report in a 
formatprescribed by the Administrator, for each calendar quarter 
beginningwith:
    (i) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering January 1, 2008 through March 
31,2008;

[[Page 936]]

    (ii) For a unit that commences commercial operation on orafter July 
1, 2007, the calendar quarter corresponding to the earlierof the date of 
provisional certification or the applicable deadlinefor initial 
certification under Sec. 97.170(b), unless thatquarter is the third or 
fourth quarter of 2007, in which casereporting shall commence in the 
quarter covering January 1, 2008through March 31, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart II of this part, the calendar quartercorresponding to the date 
specified in Sec. 97.184(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a CAIR NOX opt-in unit under subpart II ofthis part, the 
calendar quarter corresponding to the date on which theCAIR 
NOX opt-in unit enters the CAIR NOXAnnual Trading 
Program as provided in Sec. 97.184(g).
    (2) The CAIR designated representative shall submit each 
quarterlyreport to the Administrator within 30 days following the end of 
thecalendar quarter covered by the report. Quarterly reports shall 
besubmitted in the manner specified in Sec. 75.73(f) of thischapter.
    (3) For CAIR NOX units that are also subject to anAcid 
Rain emissions limitation or the CAIR NOX OzoneSeason Trading 
Program, CAIR SO2 Trading Program, or HgBudget Trading 
Program, quarterly reports shall include the applicabledata and 
information required by subparts F through I of part 75 ofthis chapter 
as applicable, in addition to the NOX massemission data, heat 
input data, and other information required by thissubpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by the Administrator) in supportof each quarterly report 
based on reasonable inquiry of those personswith primary responsibility 
for ensuring that all of the unit'semissions are correctly and fully 
monitored. The certification shallstate that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications; and
    (2) For a unit with add-on NOX emission controls andfor 
all hours where NOX data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
NOX emissions.



Sec. 97.175  Petitions.

    The CAIR designated representative of a CAIR NOX unitmay 
submit a petition under Sec. 75.66 of this chapter tothe Administrator 
requesting approval to apply an alternative to anyrequirement of this 
subpart. Application of an alternative to anyrequirement of this subpart 
is in accordance with this subpart only tothe extent that the petition 
is approved in writing by theAdministrator, in consultation with the 
permitting authority.



                    Subpart II_CAIR NOX Opt-In Units



Sec. 97.180  Applicability.

    A CAIR NOX opt-in unit must be a unit that:
    (a) Is located in a State that submits, and for which 
theAdministrator approves, a State implementation plan revision 
inaccordance with Sec. 51.123(p)(3)(i), (ii), or (iii) of thischapter 
establishing procedures concerning CAIR opt-in units;
    (b) Is not a CAIR NOX unit under Sec. 97.104and is not 
covered by a retired unit exemption underSec. 97.105 that is in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart HH 
ofthis part.

[[Page 937]]



Sec. 97.181  General.

    (a) Except as otherwise provided in Sec. Sec. 97.101through 97.104, 
Sec. Sec. 97.106 through 97.108, andsubparts BB and CC and subparts FF 
through HH of this part, a CAIRNOX opt-in unit shall be 
treated as a CAIR NOXunit for purposes of applying such 
sections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HH of this part to a unit for which a CAIRopt-in 
permit application is submitted and not withdrawn and a CAIRopt-in 
permit is not yet issued or denied under this subpart, suchunit shall be 
treated as a CAIR NOX unit before issuanceof a CAIR opt-in 
permit for such unit.



Sec. 97.182  CAIR designated representative.

    Any CAIR NOX opt-in unit, and any unit for which aCAIR 
opt-in permit application is submitted and not withdrawn and aCAIR opt-
in permit is not yet issued or denied under this subpart,located at the 
same source as one or more CAIR NOX unitsshall have the same 
CAIR designated representative and alternate CAIRdesignated 
representative as such CAIR NOX units.



Sec. 97.183  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements for aCAIR 
NOX opt-in unit in Sec. 97.180 may applyfor an initial CAIR 
opt-in permit at any time, except as providedunder Sec. 97.186(f) and 
(g), and, in order to apply, mustsubmit the following:
    (1) A complete CAIR permit application underSec. 97.122;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR NOX unit under Sec. 97.104and is not 
covered by a retired unit exemption underSec. 97.105 that is in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Vents all of its emissions to a stack; and
    (iv) Has documented heat input for more than 876 hours during the6 
months immediately preceding submission of the CAIR permitapplication 
under Sec. 97.122;
    (3) A monitoring plan in accordance with subpart HH of this part;
    (4) A complete certificate of representation underSec. 97.113 
consistent with Sec. 97.182, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR NOX allowances underSec. 97.188(b) or Sec. 
97.188(c) (subject to theconditions in Sec. Sec. 97.184(h) and 
97.186(g)), to theextent such allocation is provided in a State 
implementation planrevision submitted in accordance with Sec. 
51.123(p)(3)(i),(ii), or (iii) of this chapter and approved by the 
Administrator. Ifallocation under Sec. 97.188(c) is requested, this 
statementshall include a statement that the owners and operators of the 
unitintend to repower the unit before January 1, 2015 and that they 
willprovide, upon request, documentation demonstrating such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
NOX opt-in unit shall submit a complete CAIRpermit 
application under Sec. 97.122 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority'sregulations for title V 
operating permits, or the permittingauthority's regulations for other 
federally enforceable permits ifapplicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR NOX opt-in unit 
fromthe CAIR NOX Annual Trading Program in accordance 
withSec. 97.186 or the unit becomes a CAIR NOX unitunder 
Sec. 97.104, the CAIR NOX opt-in unitshall remain subject to 
the requirements for a CAIR NOXopt-in unit, even if the CAIR 
designated representative for the CAIRNOX opt-in unit fails 
to submit a CAIR permit applicationthat is required for renewal of the 
CAIR opt-in permit under paragraph(b)(1) of this section.

[[Page 938]]



Sec. 97.184  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 97.183 is submitted in accordance with thefollowing, to the extent 
provided in a State implementation planrevision submitted in accordance 
with Sec. 51.123(p)(3)(i),(ii), or (iii) of this chapter and approved 
by the Administrator:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit under Sec. 97.183. Amonitoring plan is sufficient, for 
purposes of interim review, if theplan appears to contain information 
demonstrating that theNOX emissions rate and heat input of 
the unit and allother applicable parameters are monitored and reported 
in accordancewith subpart HH of this part. A determination of 
sufficiency shall notbe construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the NOX emissions rate and theheat input of the unit 
and all other applicable parameters, inaccordance with subpart HH of 
this part, starting on the date ofcertification of the appropriate 
monitoring systems under subpart HHof this part and continuing until a 
CAIR opt-in permit is denied underSec. 97.184(f) or, if a CAIR opt-in 
permit is issued, thedate and time when the unit is withdrawn from the 
CAIR NOXAnnual Trading Program in accordance with Sec. 
97.186.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR NOXAnnual Trading 
Program under Sec. 97.184(g), during whichperiod monitoring system 
availability must not be less than 90 percentunder subpart HH of this 
part and the unit must be in full compliancewith any applicable State or 
Federal emissions or emissions-relatedrequirements.
    (2) To the extent the NOX emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HH of this part and the unit is 
infull compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR NOXAnnual 
Trading Program under Sec. 97.184(g), suchinformation shall be used as 
provided in paragraphs (c) and (d) ofthis section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit'sbaseline NOX 
emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's NOXemissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on NOX emission controls during anysuch control 
periods, the average of the amounts of the unit'sNOX 
emissions rate (in lb/mmBtu) for the control periodsunder

[[Page 939]]

paragraphs (b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
NOX emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sNOX emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline NOX emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows that 
the unit meets the requirements for a CAIRNOX opt-in unit in 
Sec. 97.180 and meets theelements certified in Sec. 97.183(a)(2), the 
permittingauthority will issue a CAIR opt-in permit. The permitting 
authoritywill provide a copy of the CAIR opt-in permit to the 
Administrator,who will then establish a compliance account for the 
source thatincludes the CAIR NOX opt-in unit unless the 
sourcealready has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in permit for the unit, thepermitting authority 
determines that the CAIR designatedrepresentative fails to show that the 
unit meets the requirements fora CAIR NOX opt-in unit in 
Sec. 97.180 or meetsthe elements certified in Sec. 97.183(a)(2), the 
permittingauthority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR NOX AnnualTrading Program. A 
unit for which an initial CAIR opt-in permit isissued by the permitting 
authority shall become a CAIR NOXopt-in unit, and a CAIR 
NOX unit, as of the later ofJanuary 1, 2009 or January 1 of 
the first control period during whichsuch CAIR opt-in permit is issued.
    (h) Repowered CAIR NOX opt-in unit. (1) IfCAIR designated 
representative requests, and the permitting authorityissues a CAIR opt-
in permit providing for, allocation to a CAIRNOX opt-in unit 
of CAIR NOX allowances underSec. 97.188(c) and such unit is 
repowered after its date ofentry into the CAIR NOX Annual 
Trading Program underparagraph (g) of this section, the repowered unit 
shall be treated asa CAIR NOX opt-in unit replacing the 
original CAIRNOX opt-in unit, as of the date of start-up of 
therepowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline NOX emission rate as the originalCAIR NOX 
opt-in unit, and the original CAIRNOX opt-in unit shall no 
longer be treated as a CAIRNOX opt-in unit or a CAIR 
NOX unit.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.185  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 97.122;
    (2) The certification in Sec. 97.183(a)(2);
    (3) The unit's baseline heat input under Sec. 97.184(c);
    (4) The unit's baseline NOX emission rate underSec. 
97.184(d);
    (5) A statement whether the unit is to be allocated 
CAIRNOX allowances under Sec. 97.188(b) orSec. 97.188(c) 
(subject to the conditions inSec. Sec. 97.184(h) and 97.186(g));
    (6) A statement that the unit may withdraw from the 
CAIRNOX Annual Trading Program only in accordance withSec. 
97.186; and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
97.187.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 97.102 and, 
uponrecordation by the Administrator under subpart FF or GG of this 
partor this subpart, every allocation, transfer, or deduction of 
CAIRNOX allowances to or from the compliance account of 
thesource that includes a

[[Page 940]]

CAIR NOX opt-in unit coveredby the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR NOX opt-in unit is located and in atitle V operating 
permit or other federally enforceable permit for thesource.



Sec. 97.186  Withdrawal from CAIR NOX Annual Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRNOX opt-in unit may withdraw from the CAIR 
NOXAnnual Trading Program, but only if the permitting 
authority issues anotification to the CAIR designated representative of 
the CAIRNOX opt-in unit of the acceptance of the withdrawal 
of theCAIR NOX opt-in unit in accordance with paragraph (d) 
ofthis section.
    (a) Requesting withdrawal. In order to withdraw a CAIRNOX 
opt-in unit from the CAIR NOX AnnualTrading Program, the CAIR 
designated representative of the CAIRNOX opt-in unit shall 
submit to the permitting authority arequest to withdraw effective as of 
midnight of December 31 of aspecified calendar year, which date must be 
at least 4 years afterDecember 31 of the year of entry into the CAIR 
NOX AnnualTrading Program under Sec. 97.184(g). The request 
must besubmitted no later than 90 days before the requested effective 
date ofwithdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOXopt-in 
unit covered by a request under paragraph (a) of this sectionmay 
withdraw from the CAIR NOX Annual Trading Program andthe CAIR 
opt-in permit may be terminated under paragraph (e) of thissection, the 
following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRNOX opt-
in unit must meet the requirement to hold CAIRNOX allowances 
under Sec. 97.106(c) and cannothave any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR NOX 
opt-inunit CAIR NOX allowances equal in amount to and 
allocatedfor the same or a prior control period as any CAIR 
NOXallowances allocated to the CAIR NOX opt-in 
unit underSec. 97.188 for any control period for which the withdrawalis 
to be effective. If there are no remaining CAIR NOXunits at 
the source, the Administrator will close the complianceaccount, and the 
owners and operators of the CAIR NOX opt-in unit may submit a 
CAIR NOX allowance transfer for anyremaining CAIR 
NOX allowances to another CAIRNOX Allowance 
Tracking System in accordance with subpartGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR NOX allowancesrequired), the 
permitting authority will issue a notification to theCAIR designated 
representative of the CAIR NOX opt-in unitof the acceptance 
of the withdrawal of the CAIR NOX opt-inunit as of midnight 
on December 31 of the calendar year for which thewithdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRNOX opt-in unit that the CAIR NOX opt-inunit's 
request to withdraw is denied. Such CAIR NOX opt-inunit shall 
continue to be a CAIR NOX opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR NOX opt-inunit to terminate the 
CAIR opt-in permit for such unit as of theeffective date specified under 
paragraph (c)(1) of this section. Theunit shall continue to be a CAIR 
NOX opt-in unit until theeffective date of the termination 
and shall comply with allrequirements under the CAIR NOX 
Annual Trading Programconcerning any control periods for which the unit 
is a CAIRNOX opt-in unit, even if such requirements arise or 
mustbe complied with after the withdrawal takes effect.

[[Page 941]]

    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRNOX opt-in unit's 
request to withdraw, the CAIR designatedrepresentative may submit 
another request to withdraw in accordancewith paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR NOX AnnualTrading 
Program. Once a CAIR NOX opt-in unit withdrawsfrom the CAIR 
NOX Annual Trading Program and its CAIR opt-in permit is 
terminated under this section, the CAIR designatedrepresentative may not 
submit another application for a CAIR opt-inpermit under Sec. 97.183 
for such CAIR NOX opt-in unit before the date that is 4 years 
after the date on which thewithdrawal became effective. Such new 
application for a CAIR opt-inpermit will be treated as an initial 
application for a CAIR opt-inpermit under Sec. 97.184.
    (g) Inability to withdraw. Notwithstanding paragraphs (a)through (f) 
of this section, a CAIR NOX opt-in unit shallnot be eligible 
to withdraw from the CAIR NOX AnnualTrading Program if the 
CAIR designated representative of the CAIRNOX opt-in unit 
requests, and the permitting authorityissues a CAIR NOX opt-
in permit providing for, allocationto the CAIR NOX opt-in 
unit of CAIR NOXallowances under Sec. 97.188(c).



Sec. 97.187  Change in regulatory status.

    (a) Notification. If a CAIR NOX opt-in unitbecomes a CAIR 
NOX unit under Sec. 97.104, thenthe CAIR designated 
representative shall notify in writing thepermitting authority and the 
Administrator of such change in the CAIRNOX opt-in unit's 
regulatory status, within 30 days ofsuch change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
NOX opt-in unit becomes a CAIR NOXunit under Sec. 
97.104, the permitting authority will revisethe CAIR NOX opt-
in unit's CAIR opt-in permit to meet therequirements of a CAIR permit 
under Sec. 97.123, and removethe CAIR opt-in permit provisions, as of 
the date on which the CAIRNOX opt-in unit becomes a CAIR 
NOX unit underSec. 97.104.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes the CAIR NOX opt-in unit thatbecomes 
a CAIR NOX unit under Sec. 97.104, CAIRNOX 
allowances equal in amount to and allocated for thesame or a prior 
control period as:
    (A) Any CAIR NOX allowances allocated to the 
CAIRNOX opt-in unit under Sec. 97.188 for anycontrol period 
after the date on which the CAIR NOX opt-inunit becomes a 
CAIR NOX unit under Sec. 97.104;and
    (B) If the date on which the CAIR NOX opt-in unitbecomes 
a CAIR NOX unit under Sec. 97.104 is notDecember 31, the 
CAIR NOX allowances allocated to the CAIRNOX opt-
in unit under Sec. 97.188 for thecontrol period that includes the date 
on which the CAIRNOX opt-in unit becomes a CAIR 
NOX unit underSec. 97.104, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRNOX opt-in unit becomes a CAIR NOX unit 
underSec. 97.104 divided by the total number of days in thecontrol 
period and rounded to the nearest whole allowance asappropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRNOX 
opt-in unit that becomes a CAIR NOX unitunder Sec. 97.104 
contains the CAIR NOXallowances necessary for completion of 
the deduction under paragraph(b)(2)(i) of this section.
    (3)(i) For every control period after the date on which the 
CAIRNOX opt-in unit becomes a CAIR NOX unit 
underSec. 97.104, the CAIR NOX opt-in unit will beallocated 
CAIR NOX allowances under Sec. 97.142.
    (ii) If the date on which the CAIR NOX opt-in unitbecomes 
a CAIR NOX unit under Sec. 97.104 is notDecember 31, the 
following amount of CAIR NOX allowanceswill be allocated to 
the CAIR NOX opt-in unit (as a CAIRNOX unit) under 
( 97.142 for the control period thatincludes the date on which the CAIR 
NOX opt-in unitbecomes a CAIR NOX unit under Sec. 
97.104:
    (A) The amount of CAIR NOX allowances otherwiseallocated 
to the CAIR NOX opt-in unit (as a CAIRNOX unit) 
under Sec. 97.142 for the controlperiod multiplied by;
    (B) The ratio of the number of days, in the control period,starting 
with the date on which the CAIR NOX opt-in unitbecomes a CAIR 
NOX unit under

[[Page 942]]

Sec. 97.104,divided by the total number of days in the control period; 
and
    (C) Rounded to the nearest whole allowance as appropriate.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.188  CAIR NOX allowance allocations to CAIR NOXopt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 97.184(e), the permitting authority willallocate CAIR 
NOX allowances to the CAIR NOXopt-in unit, and 
submit to the Administrator the allocation for thecontrol period in 
which a CAIR NOX opt-in unit enters theCAIR NOX 
Annual Trading Program underSec. 97.184(g), in accordance with 
paragraph (b) or (c) ofthis section.
    (2) By no later than October 31 of the control period after 
thecontrol period in which a CAIR NOX opt-in unit enters 
theCAIR NOX Annual Trading Program underSec. 97.184(g) and 
October 31 of each year thereafter, thepermitting authority will 
allocate CAIR NOX allowances tothe CAIR NOX opt-in 
unit, and submit to the Administratorthe allocation for the control 
period that includes such submissiondeadline and in which the unit is a 
CAIR NOX opt-in unit,in accordance with paragraph (b) or (c) 
of this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR NOX opt-in unit is to be allocated CAIRNOX 
allowances, the permitting authority will allocate inaccordance with the 
following procedures, if provided in a Stateimplementation plan revision 
submitted in accordance withSec. 51.123(p)(3)(i), (ii), or (iii) of 
this chapter andapproved by the Administrator:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRNOX allowance allocation will be the lesser of:
    (i) The CAIR NOX opt-in unit's baseline heat 
inputdetermined under Sec. 97.184(c); or
    (ii) The CAIR NOX opt-in unit's heat input, asdetermined 
in accordance with subpart HH of this part, for theimmediately prior 
control period, except when the allocation is beingcalculated for the 
control period in which the CAIR NOXopt-in unit enters the 
CAIR NOX Annual Trading Programunder Sec. 97.184(g).
    (2) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX allowance allocations will be 
thelesser of:
    (i) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 97.184(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX opt-in unit at 
anytime during the control period for which CAIR 
NOXallowances are to be allocated.
    (3) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (b)(1) of this 
section,multiplied by the NOX emission rate under paragraph 
(b)(2)of this section, divided by 2,000 lb/ton, and rounded to the 
nearestwhole allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit (based on a demonstration of the 
intent torepower stated under Sec. 97.183(a)(5)) providing 
for,allocation to a CAIR NOX opt-in unit of 
CAIRNOX allowances under this paragraph (subject to 
theconditions in Sec. Sec. 97.184(h) and 97.186(g)), thepermitting 
authority will allocate to the CAIR NOX opt-inunit as 
follows, if provided in a State implementation plan revisionsubmitted in 
accordance with ( 51.123(p)(3)(i), (ii), or (iii) of thischapter and 
approved by the Administrator:
    (1) For each control period in 2009 through 2014 for which theCAIR 
NOX opt-in unit is to be allocated CAIRNOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRNOX allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX allowance allocations will be 
thelesser of:
    (A) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 97.184(d); or
    (B) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX opt-in unit at 
any

[[Page 943]]

time during the control period in which the CAIR NOXopt-in 
unit enters the CAIR NOX Annual Trading Programunder Sec. 
97.184(g).
    (iii) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (c)(1)(i) of this 
section,multiplied by the NOX emission rate under paragraph 
(c)(1)(ii) of this section, divided by 2,000 lb/ton, and rounded to 
thenearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which theCAIR 
NOX opt-in unit is to be allocated CAIRNOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRNOX allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating the CAIR NOX allowance allocation will be 
thelesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX opt-in unit's baselineNOX 
emissions rate (in lb/mmBtu) determined underSec. 97.184(d); or
    (C) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX opt-in unit at 
anytime during the control period for which CAIR 
NOXallowances are to be allocated.
    (iii) The permitting authority will allocate CAIR 
NOXallowances to the CAIR NOX opt-in unit in an 
amountequaling the heat input under paragraph (c)(2)(i) of this 
section,multiplied by the NOX emission rate under paragraph 
(c)(2)(ii) of this section, divided by 2,000 lb/ton, and rounded to 
thenearest whole allowance as appropriate.
    (d) Recordation. If provided in a State implementation planrevision 
submitted in accordance with Sec. 51.123(p)(3)(i),(ii), or (iii) of 
this chapter and approved by the Administrator:
    (1) The Administrator will record, in the compliance account ofthe 
source that includes the CAIR NOX opt-in unit, theCAIR 
NOX allowances allocated by the permitting authorityto the 
CAIR NOX opt-in unit under paragraph (a)(1) of thissection.
    (2) By December 1 of the control period in which a 
CAIRNOX opt-in unit enters the CAIR NOX 
AnnualTrading Program under Sec. 97.184(g) and December 1 of eachyear 
thereafter, the Administrator will record, in the complianceaccount of 
the source that includes the CAIR NOX opt-inunit, the CAIR 
NOX allowances allocated by the permittingauthority to the 
CAIR NOX opt-in unit under paragraph (a)(2) of this section.



  Sec. Appendix A to Subpart II ofPart 97--States With Approved State 
Implementation PlanRevisions Concerning CAIR NOX Opt-In Units

    1. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(p)(3) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRNOX opt-in units under subpart II of this part 
andallocation of CAIR NOX allowances to such units underSec. 
97.188(b):
    Indiana
    Michigan
     North Carolina
     Ohio
     South Carolina
     Tennessee
    2. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(p)(3) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRNOX opt-in units under subpart II of this part 
andallocation of CAIR NOX allowances to such units underSec. 
97.188(c):
    Indiana
    Michigan
     Ohio
     North Carolina
     South Carolina
     Tennessee

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 46394, Aug.20, 2007; 72 
FR 56920, Oct. 5, 2007; 72 FR 57215, Oct. 9, 2007; 72 FR59487, Oct. 22, 
2007; 72 FR 72262, Dec. 20, 2007; 73 FR 6040, Feb. 1,2008]



         Subpart AAA_CAIR SO2 Trading ProgramGeneral Provisions



Sec. 97.201  Purpose.

    This subpart and subparts BBB through III set forth the 
generalprovisions and the designated representative, permitting, 
allowance,monitoring, and opt-in provisions for the Federal Clean Air 
InterstateRule (CAIR) SO2 Trading Program, under section 110 
of theClean Air Act and Sec. 52.36 of this chapter, as a means of

[[Page 944]]

mitigating interstate transport of fine particulates and sulfurdioxide.



Sec. 97.202  Definitions.

    The terms used in this subpart and subparts BBB through III 
shallhave the meanings set forth in this section as follows:
    Accountnumber means the identification number given by the 
Administratorto each CAIR SO2 Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides air pollution control and emission reduction programestablished 
by the Administrator under title IV of the CAA and parts72 through 78 of 
this chapter.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRSO2 
allowances issued under the Acid Rain Program, thedetermination by the 
Administrator of the amount of such CAIRSO2 allowances to be 
initially credited to a CAIRSO2 unit or other entity and, 
with regard to CAIRSO2 allowances issued under Sec. 97.288 
orprovisions of a State implementation plan that are approved underSec. 
51.124(o)(1) or (2) or (r) of this chapter, thedetermination by a 
permitting authority of the amount of such CAIRSO2 allowances 
to be initially credited to a CAIRSO2 unit or other entity.
    Allowance transfer deadline means, for a control period,midnight of 
March 1 (if it is a business day), or midnight of thefirst business day 
thereafter (if March 1 is not a business day),immediately following the 
control period and is the deadline by whicha CAIR SO2 
allowance transfer must be submitted forrecordation in a CAIR 
SO2 source's compliance account inorder to be used to meet 
the source's CAIR SO2 emissionslimitation for such control 
period in accordance withSec. 97.254.
    Alternate CAIR designated representative means, for a 
CAIRSO2 source and each CAIR SO2 unit at 
thesource, the natural person who is authorized by the owners 
andoperators of the source and all such units at the source, 
inaccordance with subparts BBB and III of this part, to act on behalf 
ofthe CAIR designated representative in matters pertaining to the 
CAIRSO2 Trading Program. If the CAIR SO2 source 
isalso a CAIR NOX source, then this natural person shall 
bethe same person as the alternate CAIR designated representative 
underthe CAIR NOX Annual Trading Program. If the 
CAIRSO2 source is also a CAIR NOX Ozone 
Seasonsource, then this natural person shall be the same person as 
thealternate CAIR designated representative under the CAIRNOX 
Ozone Season Trading Program. If the CAIRSO2 source is also 
subject to the Acid Rain Program, thenthis natural person shall be the 
same person as the alternatedesignated representative under the Acid 
Rain Program. If the CAIRSO2 source is also subject to the Hg 
Budget TradingProgram, then this natural person shall be the same person 
as thealternate Hg designated representative under the Hg Budget 
TradingProgram.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions monitoring system approved for use under subpart HHHof this 
part, designed to interpret and convert individual outputsignals from 
pollutant concentration monitors, flow monitors, diluentgas monitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HHH of thispart.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial

[[Page 945]]

thinnings, slash, brush, or byproduct fromconversion of trees to 
merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil- or other-fuel-firedcombustion 
device used to produce heat and to transfer heat torecirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BBB, FFF, and III of this part, to 
transferand otherwise dispose of CAIR SO2 allowances held in 
thegeneral account and, with regard to a compliance account, the 
CAIRdesignated representative of the source.
    CAIR designated representative means, for a CAIRSO2 
source and each CAIR SO2 unit at thesource, the natural 
person who is authorized by the owners andoperators of the source and 
all such units at the source, inaccordance with subparts BBB and III of 
this part, to represent andlegally bind each owner and operator in 
matters pertaining to the CAIRSO2 Trading Program. If the 
CAIR SO2 source isalso a CAIR NOX source, then 
this natural person shall bethe same person as the CAIR designated 
representative under the CAIRNOX Annual Trading Program. If 
the CAIR SO2source is also a CAIR NOX Ozone Season 
source, then thisnatural person shall be the same person as the CAIR 
designatedrepresentative under the CAIR NOX Ozone Season 
TradingProgram. If the CAIR SO2 source is also subject to 
theAcid Rain Program, then this natural person shall be the same 
personas the designated representative under the Acid Rain Program. If 
theCAIR SO2 source is also subject to the Hg Budget 
TradingProgram, then this natural person shall be the same person as the 
Hgdesignated representative under the Hg Budget Trading Program.
    CAIR NOX Annual Trading Program means amulti-state nitrogen oxides 
air pollution control and emissionreduction program established by the 
Administrator in accordance withsubparts AA through II of this part and 
Sec. 51.123(p) and52.35 of this chapter or approved and administered by 
theAdministrator in accordance with subparts AA through II of part 96 
ofthis chapter and Sec. 51.123(o)(1) or (2) of this chapter,as a means 
of mitigating interstate transport of fine particulates andnitrogen 
oxides.
    CAIR NOX Ozone Season source means asource that is subject to the 
CAIR NOX Ozone SeasonTrading Program.
    CAIR NOX Ozone Season Trading Programmeans a multi-state nitrogen 
oxides air pollution control and emissionreduction program established 
by the Administrator in accordance withsubparts AAAA through IIII of 
this part and Sec. 51.123(ee)and 52.35 of this chapter or approved and 
administered by theAdministrator in accordance with subparts AAAA 
through IIII of part 96and Sec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), or(dd) of this chapter, as a means of mitigating interstate 
transport ofozone and nitrogen oxides.
    CAIR NOX source means a source that issubject to the CAIR 
NOX Annual Trading Program.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CCC of this part, including anypermit revisions, 
specifying the CAIR SO2 Trading Programrequirements 
applicable to a CAIR SO2 source, to each CAIRSO2 
unit at the source, and to the owners and operatorsand the CAIR 
designated representative of the source and each suchunit.
    CAIR SO2 allowance means a limitedauthorization issued by the 
Administrator under the Acid Rain Program,by a permitting authority 
under Sec. 97.288, or by apermitting authority under provisions of a 
State implementation planthat are approved under Sec. 51.124(o)(1) or 
(2) or (r) ofthis chapter,

[[Page 946]]

to emit sulfur dioxide during the control period ofthe specified 
calendar year for which the authorization is allocatedor of any calendar 
year thereafter under the CAIR SO2Trading Program as follows:
    (1) For one CAIR SO2 allowance allocated for a 
controlperiod in a year before 2010, one ton of sulfur dioxide, except 
asprovided in Sec. 97.254(b);
    (2) For one CAIR SO2 allowance allocated for a 
controlperiod in 2010 through 2014, 0.50 ton of sulfur dioxide, except 
asprovided in Sec. 97.254(b); and
    (3) For one CAIR SO2 allowance allocated for a 
controlperiod in 2015 or later, 0.35 ton of sulfur dioxide, except 
asprovided in Sec. 97.254(b).
    (4) An authorization to emit sulfur dioxide that is not issuedunder 
the Acid Rain Program, Sec. 97.288, or provisions of aState 
implementation plan that are approved underSec. 51.124(o)(1) or (2) or 
(r) of this chapter shall not bea CAIR SO2 allowance.
    CAIR SO2 allowance deduction or deductCAIR SO2 allowances means the 
permanentwithdrawal of CAIR SO2 allowances by the 
Administratorfrom a compliance account, e.g., in order to account for 
aspecified number of tons of total sulfur dioxide emissions from allCAIR 
SO2 units at a CAIR SO2 source for acontrol 
period, determined in accordance with subpart HHH of thispart, or to 
account for excess emissions.
    CAIR SO2 Allowance Tracking System meansthe system by which the 
Administrator records allocations, deductions,and transfers of CAIR 
SO2 allowances under the CAIRSO2 Trading Program. 
This is the same system as theAllowance Tracking System under Sec. 72.2 
of this chapter bywhich the Administrator records allocations, 
deduction, and transfersof Acid Rain SO2 allowances under the 
Acid Rain Program.
    CAIR SO2 Allowance Tracking System accountmeans an account in the 
CAIR SO2 Allowance TrackingSystem established by the Administrator for 
purposes of recording theallocation, holding, transferring, or deducting 
of CAIRSO2 allowances. Such allowances will be allocated, 
held,deducted, or transferred only as whole allowances.
    CAIR SO2 allowances held or hold CAIRSO2 allowances means the CAIR 
SO2allowances recorded by the Administrator, or submitted to 
theAdministrator for recordation, in accordance with subparts FFF, 
GGG,and III of this part or part 73 of this chapter, in a 
CAIRSO2 Allowance Tracking System account.
    CAIR SO2 emissions limitation means, for aCAIR SO2 
source, the tonnage equivalent, inSO2 emissions in a control 
period, of the CAIRSO2 allowances available for deduction for 
the sourceunder Sec. 97.254(a) and (b) for the control period.
    CAIR SO2 source means a source thatincludes one or more CAIR 
SO2 units.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reductionprogram established by the 
Administrator in accordance with subpartsAAA through III of this part 
and Sec. Sec. 51.124(r) and52.36 of this chapter or approved and 
administered by theAdministrator in accordance with subparts AAA through 
III of part 96of this chapter and Sec. 51.124(o) (1) or (2) of 
thischapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    CAIR SO2 unit means a unit that is subjectto the CAIR SO2 
Trading Program underSec. 97.204 and, except for purposes ofSec. 
97.205, a CAIR SO2 opt-in unit undersubpart III of this part.
    Certifying official means:
    (1) For a corporation, a president, secretary, treasurer, or vice-
president or the corporation in charge of a principal businessfunction 
or any other person who performs similar policy or decision-making 
functions for the corporation;
    (2) For a partnership or sole proprietorship, a general partner 
orthe proprietor respectively; or
    (3) For a local government entity or State, Federal, or otherpublic 
agency, a principal executive officer or ranking electedofficial.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous

[[Page 947]]

state) produced by the mechanical, thermal, orchemical processing of 
coal.
    Coal-fired means combusting any amount of coal or coal-derived fuel, 
alone, or in combination with any amount of any otherfuel.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit,
    (A) Useful thermal energy not less than 5 percent of total 
energyoutput; and
    (B) Useful power that, when added to one-half of useful 
thermalenergy produced, is not less then 42.5 percent of total energy 
input,if useful thermal energy produced is 15 percent or more of 
totalenergy output, or not less than 45 percent of total energy input, 
ifuseful thermal energy produced is less than 15 percent of total 
energyoutput.
    (ii) For a bottoming-cycle cogeneration unit, useful power notless 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and 
aturbine and in which the flue gas resulting from the combustion offuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to generate electricity for sale or use, including testgeneration, 
except as provided in Sec. 97.205 andSec. 97.284(h).
    (i) For a unit that is a CAIR SO2 unit underSec. 97.204 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that subsequently undergoes a physical change(other than replacement of 
the unit by a unit at the same source),such date shall remain the date 
of commencement of commercialoperation of the unit, which shall continue 
to be treated as the sameunit.
    (ii) For a unit that is a CAIR SO2 unit underSec. 97.204 
on the later of November 15, 1990 or the datethe unit commences 
commercial operation as defined in paragraph (1) ofthis definition and 
that is subsequently replaced by a unit at thesame source (e.g., 
repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1) or (2) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 97.205, for a unit that is not a CAIRSO2 
unit under Sec. 97.204 on the later ofNovember 15, 1990 or the date the 
unit commences commercial operationas defined in paragraph (1) of this 
definition, the unit's date forcommencement of commercial operation 
shall be the date on which theunit becomes a CAIR SO2 unit 
under Sec. 97.204.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement

[[Page 948]]

of commercial operation, and the replacement unitshall be treated as a 
separate unit with a separate date forcommencement of commercial 
operation as defined in paragraph (1) or(2) of this definition as 
appropriate.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 97.284(h).
    (2) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (3) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date shall remainthe replaced 
unit's date of commencement of operation, and thereplacement unit shall 
be treated as a separate unit with a separatedate for commencement of 
operation as defined in paragraph (1), (2),or (3) of this definition as 
appropriate, except as provided inSec. 97.284(h).
    Common stack means a single flue through which emissionsfrom 2 or 
more units are exhausted.
    Compliance account means a CAIR SO2 AllowanceTracking 
System account, established by the Administrator for a 
CAIRSO2 source subject to an Acid Rain emissions 
limitationsunder Sec. 73.31(a) or (b) of this chapter or for any 
otherCAIR SO2 source under subpart FFF or III of this part, 
inwhich any CAIR SO2 allowance allocations for the 
CAIRSO2 units at the source are initially recorded and 
inwhich are held any CAIR SO2 allowances available for usefor 
a control period in order to meet the source's CAIRSO2 
emissions limitation in accordance withSec. 97.254.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HHH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at leastonce every 15 minutes 
(using an automated data acquisition andhandling system (DAHS)), a 
permanent record of sulfur dioxideemissions, stack gas volumetric flow 
rate, stack gas moisture content,and oxygen or carbon dioxide 
concentration (as applicable), in amanner consistent with part 75 of 
this chapter. The following systemsare the principal types of continuous 
emission monitoring systemsrequired under subpart HHH of this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A sulfur dioxide monitoring system, consisting of 
aSO2 pollutant concentration monitor and an automated 
dataacquisition and handling system and providing a permanent, 
continuousrecord of SO2 emissions, in parts per million 
(ppm);
    (3) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (4) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous 
record ofCO2 emissions, in percent CO2; and
    (5) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2in percent O2.
    Control period means the period beginning January 1 of acalendar 
year, except as provided in Sec. 97.206(c)(2), andending on December 31 
of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the CAIR designated representative and as determinedby the 
Administrator in accordance with subpart HHH of this part.

[[Page 949]]

    Excess emissions means any ton, or portion of a ton, ofsulfur 
dioxide emitted by the CAIR SO2 units at a CAIRSO2 
source during a control period that exceeds the CAIRSO2 
emissions limitation for the source, provided that anyportion of a ton 
of excess emissions shall be treated as one ton ofexcess emissions.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    General account means a CAIR SO2 AllowanceTracking System 
account, established under subpart FFF of this part,that is not a 
compliance account.
    Generator means a device that produces electricity.
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the CAIR designatedrepresentative and 
determined by the Administrator in accordance withsubpart HHH of this 
part and excluding the heat derived from preheatedcombustion air, 
recirculated flue gases, or exhaust from othersources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Hg Budget Trading Program means a multi-state Hg airpollution 
control and emission reduction program approved andadministered by the 
Administrator in accordance subpart HHHH of part60 of this chapter and 
Sec. 60.24(h)(6), or established bythe Administrator under section 111 
of the Clean Air Act, as a meansof reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in Btu/hr) that a unit is capable of combusting on a steadystate basis 
as of the initial installation of the unit as specified bythe 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HHH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal SO2 emissionslimitation means, with 
regard to a unit, the lowest SO2emissions limitation (in 
terms of lb/mmBtu) that is applicable to theunit under State or Federal 
law, regardless of the averaging period towhich the emissions limitation 
applies.
    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe)

[[Page 950]]

that thegenerator is capable of producing on a steady state basis and 
duringcontinuous operation (when not restricted by seasonal or 
otherderatings), such increased maximum amount as of such completion 
asspecified by the person conducting the physical change.
    Operator means any person who operates, controls, orsupervises a 
CAIR SO2 unit or a CAIR SO2source and shall 
include, but not be limited to, any holding company,utility system, or 
plant manager of such a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR SO2 source or a 
CAIRSO2 unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR SO2 unit at the source or the CAIR SO2unit;
    (ii) Any holder of a leasehold interest in a CAIR SO2unit 
at the source or the CAIR SO2 unit; or
    (iii) Any purchaser of power from a CAIR SO2 unit atthe 
source or the CAIR SO2 unit under a life-of-the-unit,firm 
power contractual arrangement; provided that, unless expresslyprovided 
for in a leasehold agreement, owner shall not include apassive lessor, 
or a person who has an equitable interest through suchlessor, whose 
rental payments are not based (either directly orindirectly) on the 
revenues or income from such CAIR SO2unit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR SO2 
allowancesheld in the general account and who is subject to the 
bindingagreement for the CAIR authorized account representative to 
representthe person's ownership interest with respect to CAIR 
SO2allowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR SO2 Trading Program or, if nosuch agency has been so 
authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence, by 
the permitting authority or the Administrator inthe regular course of 
business.
    Recordation, record, or recorded means, withregard to CAIR 
SO2 allowances, the movement of CAIRSO2 allowances 
by the Administrator into or between CAIRSO2 Allowance 
Tracking System accounts, for purposes ofallocation, transfer, or 
deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, withregard to a unit, the 
demolishing of a unit, or the permanent shutdownand permanent disabling 
of a unit, and the construction of anotherunit (the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance

[[Page 951]]

of technology in widespread commercial use as ofJanuary 1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Serial number means, for a CAIR SO2 allowance,the unique 
identification number assigned to each CAIR SO2allowance by 
the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''
    State means one of the States or the District of Columbiathat is 
subject to the CAIR SO2 Trading Program pursuantto Sec. 
52.35 of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR SO2 emissions limitation, totaltons of sulfur 
dioxide emissions for a control period shall becalculated as the sum of 
all recorded hourly emissions (or the massequivalent of the recorded 
hourly emission rates) in accordance withsubpart HHH of this part, but 
with any remaining fraction of a tonequal to or greater than 0.50 tons 
deemed to equal one ton and anyremaining fraction of a ton less than 
0.50 tons deemed to equal zerotons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:

LHV = HHV-10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.

    Total energy output means, with regard to a cogenerationunit, the 
sum of useful power and useful thermal energy produced bythe 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice. Unit 
operating day means a calendar day in which a unitcombusts any fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).

[[Page 952]]

    Useful thermal energy means, with regard to acogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating ordomestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermalenergy used by 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[65 FR 2727, Jan 18, 2000, as amended by 71 FR 74795, Dec. 13,2006; 72 
FR 59207, Oct. 19, 2007]



Sec. 97.203  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BBB through III are defined as follows:

Btu--British thermal unit.
CO2--carbon dioxide.
H2O--water.
Hg--mercury.
hr--hour.
kW--kilowatt electrical.
kWh--kilowatt hour.
lb--pound.
mmBtu--million Btu.
MWe--megawatt electrical.
MWh--megawatt hour.
NOX--nitrogen oxides.
O2--oxygen.
ppm--parts per million.
scfh--standard cubic feet per hour.
SO2--sulfur dioxide.
yr--year.



Sec. 97.204  Applicability.

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR 
SO2units, and any source that includes one or more such units 
shall be aCAIR SO2 source, subject to the requirements of 
thissubpart and subparts BBB through HHH of this part: any 
stationary,fossil-fuel-fired boiler or stationary, fossil-fuel-fired 
combustionturbine serving at any time, since the later of November 15, 
1990 orthe start-up of the unit's combustion chamber, a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale.
    (2) If a stationary boiler or stationary combustion turbine 
that,under paragraph (a)(1) of this section, is not a CAIR 
SO2unit begins to combust fossil fuel or to serve a generator 
withnameplate capacity of more than 25 MWe producing electricity for 
sale,the unit shall become a CAIR SO2 unit as provided 
inparagraph (a)(1) of this section on the first date on which it 
bothcombusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR SO2 units:
    (1)(i) Any unit that is a CAIR SO2 unit underparagraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of the unit's potential electric output capacityor 219,000 
MWh, whichever is greater, to any utility powerdistribution system for 
sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR SO2 unitstarting on the earlier 
of January 1 after the first calendar yearduring which the unit first no 
longer qualifies as a cogeneration unitor January 1 after the first 
calendar year during which the unit nolonger meets the requirements of 
paragraph (b)(1)(i)(B) of thissection.
    (2)(i) Any unit that is a CAIR SO2 unit underparagraph 
(a)(1) or (2) of this section commencing operation beforeJanuary 1, 
1985:

[[Page 953]]

    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR SO2 unit under 
paragraph(a)(1) or (2) of this section commencing operation on or after 
January1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the requirements of paragraph (b)(2)(i) or (ii) of this 
sectionfor at least 3 consecutive calendar years, but subsequently no 
longermeets all such requirements, the unit shall become a 
CAIRSO2 unit starting on the earlier of January 1 after 
thefirst calendar year during which the unit first no longer qualifies 
asa solid waste incineration unit or January 1 after the first 
3consecutive calendar years after 1990 for which the unit has anaverage 
annual fuel consumption of fossil fuel of 20 percent or more.
    (c) A certifying official of an owner or operator of any unit 
maypetition the Administrator at any time for a determination 
concerningthe applicability, under paragraphs (a) and (b) of this 
section, ofthe CAIR SO2 Trading Program to the unit.
    (1) Petition content. The petition shall be in writing andinclude 
the identification of the unit and the relevant facts aboutthe unit. The 
petition and any other documents provided to theAdministrator in 
connection with the petition shall include thefollowing certification 
statement, signed by the certifying official:``I am authorized to make 
this submission on behalf of theowners and operators of the unit for 
which the submission is made. Icertify under penalty of law that I have 
personally examined, and amfamiliar with, the statements and information 
submitted in thisdocument and all its attachments. Based on my inquiry 
of thoseindividuals with primary responsibility for obtaining the 
information,I certify that the statements and information are to the 
best of myknowledge and belief true, accurate, and complete. I am aware 
thatthere are significant penalties for submitting false statements 
andinformation or omitting required statements and information, 
includingthe possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documentsprovided in 
connection with the petition shall be submitted to theDirector of the 
Clean Air Markets Division (or its successor), U.S.Environmental 
Protection Agency, who will act on the petition as theAdministrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a writtenresponse to the 
petition and may request supplemental informationrelevant to such 
petition. The Administrator's determinationconcerning the applicability, 
under paragraphs (a) and (b) of thissection, of the CAIR SO2 
Trading Program to the unit shallbe binding on the permitting authority 
unless the petition or otherinformation or documents provided in 
connection with the petition arefound to have contained significant, 
relevant errors or omissions.



Sec. 97.205  Retired unit exemption.

    (a)(1) Any CAIR SO2 unit that is permanently retiredand 
is not a CAIR SO2 opt-in unit under subpart III ofthis part 
shall be exempt from the CAIR SO2 TradingProgram, except for 
the provisions of this section,Sec. Sec. 97.202, 97.203, 97.204, 
97.206(c)(4) through(7), 97.207, 97.208, and subparts BBB, FFF, and GGG 
of this part.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR SO2 unit ispermanently 
retired. Within 30 days of the unit's permanentretirement, the CAIR 
designated representative shall submit astatement to the permitting 
authority otherwise responsible foradministering any CAIR permit for the 
unit and shall submit a

[[Page 954]]

copy of the statement to the Administrator. The statement shallstate, in 
a format prescribed by the permitting authority, that theunit was 
permanently retired on a specific date and will comply withthe 
requirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCCC of this part covering the source at which the unit is located 
toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any sulfur dioxide, starting on thedate that the 
exemption takes effect.
    (2) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain, at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records may be extended for cause, at any time before 
theend of the period, in writing by the permitting authority or 
theAdministrator. The owners and operators bear the burden of proof 
thatthe unit is permanently retired.
    (3) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRSO2 
Trading Program concerning all periods for which theexemption is not in 
effect, even if such requirements arise, or mustbe complied with, after 
the exemption takes effect.
    (4) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 97.222for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2010 or thedate on which the unit resumes 
operation.
    (5) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(4) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(4) of this section to submit a CAIRpermit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the 
CAIRdesignated representative is not required to submit a CAIR 
permitapplication for the unit.
    (6) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HHH of this part, a unit 
thatloses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.



Sec. 97.206  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR SO2 source required to have atitle V operating 
permit and each CAIR SO2 unit requiredto have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 97.222 in accordance with thedeadlines 
specified in Sec. 97.221; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR SO2 
sourcerequired to have a title V operating permit and each 
CAIRSO2 unit required to have a title V operating permit 
atthe source shall have a CAIR permit issued by the permitting 
authorityunder subpart CCC of this part for the source and operate the 
sourceand the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart III of this part, the owners 
andoperators

[[Page 955]]

of a CAIR SO2 source that is not otherwiserequired to have a 
title V operating permit and each CAIRSO2 unit that is not 
otherwise required to have a title Voperating permit are not required to 
submit a CAIR permit application,and to have a CAIR permit, under 
subpart CCC of this part for suchCAIR SO2 source and such 
CAIR SO2 unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR SO2 source and each CAIR SO2 unitat the 
source shall comply with the monitoring, reporting, andrecordkeeping 
requirements of subpart HHH of this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HHH of this part shall be used to determine 
compliance byeach CAIR SO2 source with the CAIR 
SO2emissions limitation under paragraph (c) of this section.
    (c) Sulfur dioxide emission requirements. (1) As of theallowance 
transfer deadline for a control period, the owners andoperators of each 
CAIR SO2 source and each CAIRSO2 unit at the 
source shall hold, in the source'scompliance account, a tonnage 
equivalent in CAIR SO2allowances available for compliance 
deductions for the control period,as determined in accordance with Sec. 
97.254(a) and (b), notless than the tons of total sulfur dioxide 
emissions for the controlperiod from all CAIR SO2 units at 
the source, asdetermined in accordance with subpart HHH of this part.
    (2) A CAIR SO2 unit shall be subject to therequirements 
under paragraph (c)(1) of this section for the controlperiod starting on 
the later of January 1, 2010 or the deadline formeeting the unit(s 
monitor certification requirements underSec. 97.270(b)(1),(2), or (5) 
and for each control periodthereafter.
    (3) A CAIR SO2 allowance shall not be deducted, 
forcompliance with the requirements under paragraph (c)(1) of 
thissection, for a control period in a calendar year before the year 
forwhich the CAIR SO2 allowance was allocated.
    (4) CAIR SO2 allowances shall be held in, deductedfrom, 
or transferred into or among CAIR SO2 AllowanceTracking 
System accounts in accordance with subparts FFF, GGG, and IIIof this 
part.
    (5) A CAIR SO2 allowance is a limited authorization 
toemit sulfur dioxide in accordance with the CAIR SO2Trading 
Program. No provision of the CAIR SO2 TradingProgram, the 
CAIR permit application, the CAIR permit, or an exemptionunder Sec. 
97.205 and no provision of law shall be construedto limit the authority 
of the United States to terminate or limit suchauthorization.
    (6) A CAIR SO2 allowance does not constitute aproperty 
right.
    (7) Upon recordation by the Administrator under subpart FFF, GGG,or 
III of this part, every allocation, transfer, or deduction of aCAIR 
SO2 allowance to or from a CAIR SO2source's 
compliance account is incorporated automatically in any CAIRpermit of 
the source.
    (d) Excess emissions requirements. If a CAIR SO2source 
emits sulfur dioxide during any control period in excess of theCAIR 
SO2 emissions limitation, then:
    (1) The owners and operators of the source and each 
CAIRSO2 unit at the source shall surrender the 
CAIRSO2 allowances required for deduction underSec. 
97.254(d)(1) and pay any fine, penalty, or assessmentor comply with any 
other remedy imposed, for the same violations,under the Clean Air Act or 
applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRSO2 source and 
each CAIR SO2 unit at thesource shall keep on site at the 
source each of the followingdocuments for a period of 5 years from the 
date the document iscreated. This period may be extended for cause, at 
any time before theend of 5 years, in writing by the permitting 
authority or theAdministrator.
    (i) The certificate of representation under Sec. 97.213for the CAIR 
designated representative for the source and each CAIRSO2 
unit at the source and all documents that demonstratethe truth of the 
statements in the certificate of

[[Page 956]]

representation;provided that the certificate and documents shall be 
retained on siteat the source beyond such 5-year period until such 
documents aresuperseded because of the submission of a new certificate 
ofrepresentation under Sec. 97.213 changing the CAIRdesignated 
representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HHH of this part, provided that to the extent that subpart HHHof this 
part provides for a 3-year period for recordkeeping, the 3-year period 
shall apply.
    (iii) Copies of all reports, compliance certifications, and 
othersubmissions and all records made or required under the 
CAIRSO2 Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the CAIR 
SO2Trading Program or to demonstrate compliance with the 
requirements ofthe CAIR SO2 Trading Program.
    (2) The CAIR designated representative of a CAIR 
SO2source and each CAIR SO2 unit at the source 
shall submitthe reports required under the CAIR SO2 Trading 
Program,including those under subpart HHH of this part.
    (f) Liability. (1) Each CAIR SO2 source and eachCAIR 
SO2 unit shall meet the requirements of the 
CAIRSO2 Trading Program.
    (2) Any provision of the CAIR SO2 Trading Program 
thatapplies to a CAIR SO2 source or the CAIR 
designatedrepresentative of a CAIR SO2 source shall also 
apply tothe owners and operators of such source and of the 
CAIRSO2 units at the source.
    (3) Any provision of the CAIR SO2 Trading Program 
thatapplies to a CAIR SO2 unit or the CAIR 
designatedrepresentative of a CAIR SO2 unit shall also apply 
to theowners and operators of such unit.
    (g) Effect on other authorities. No provision of the 
CAIRSO2 Trading Program, a CAIR permit application, a 
CAIRpermit, or an exemption under Sec. 97.205 shall be construedas 
exempting or excluding the owners and operators, and the CAIRdesignated 
representative, of a CAIR SO2 source or CAIRSO2 
unit from compliance with any other provision of theapplicable, approved 
State implementation plan, a federallyenforceable permit, or the Clean 
Air Act.



Sec. 97.207  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR SO2 Trading Program, to begin on the occurrence of 
anact or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR SO2 Trading Program, to begin before the occurrenceof 
an act or event shall be computed so that the period ends the daybefore 
the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR SO2 Trading Program, falls on a weekend 
ora State or Federal holiday, the time period shall be extended to 
thenext business day.



Sec. 97.208  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR SO2 Trading Program are set forth in part 78 of 
thischapter.



   Subpart BBB_CAIR Designated Representative for CAIRSO[bdi2] Sources



Sec. 97.210  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 97.211, each CAIRSO2 
source, including all CAIR SO2 units atthe source, shall have 
one and only one CAIR designatedrepresentative, with regard to all 
matters under the CAIRSO2 Trading Program concerning the 
source or any CAIRSO2 unit at the source.
    (b) The CAIR designated representative of the CAIR 
SO2source shall be selected by an agreement binding on the 
owners andoperators of the source and all CAIR SO2 units at 
thesource and shall act in accordance with the certification statement 
inSec. 97.213(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 97.213, the CAIR designatedrepresentative 
of the source shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachowner and operator 
of the CAIR SO2 source represented andeach CAIR 
SO2 unit at the

[[Page 957]]

source in all matterspertaining to the CAIR SO2 Trading 
Program,notwithstanding any agreement between the CAIR 
designatedrepresentative and such owners and operators. The owners and 
operatorsshall be bound by any decision or order issued to the CAIR 
designatedrepresentative by the permitting authority, the Administrator, 
or acourt regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports willbe 
accepted, and no CAIR SO2 Allowance Tracking Systemaccount 
will be established for a CAIR SO2 unit at asource, until the 
Administrator has received a complete certificate ofrepresentation under 
Sec. 97.213 for a CAIR designatedrepresentative of the source and the 
CAIR SO2 units at thesource.
    (e)(1) Each submission under the CAIR SO2 TradingProgram 
shall be submitted, signed, and certified by the CAIRdesignated 
representative for each CAIR SO2 source onbehalf of which the 
submission is made. Each such submission shallinclude the following 
certification statement by the CAIR designatedrepresentative: ``I am 
authorized to make this submission onbehalf of the owners and operators 
of the source or units for whichthe submission is made. I certify under 
penalty of law that I havepersonally examined, and am familiar with, the 
statements andinformation submitted in this document and all its 
attachments. Basedon my inquiry of those individuals with primary 
responsibility forobtaining the information, I certify that the 
statements andinformation are to the best of my knowledge and belief 
true, accurate,and complete. I am aware that there are significant 
penalties forsubmitting false statements and information or omitting 
requiredstatements and information, including the possibility of fine 
orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRSO2 source or a CAIR SO2 unit only if 
thesubmission has been made, signed, and certified in accordance 
withparagraph (e)(1) of this section.



Sec. 97.211  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.213may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 97.213, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.
    (c) Except in this section and Sec. Sec. 97.202,97.210(a) and (d), 
97.212, 97.213, 97.215, 97.251 and 97.282, wheneverthe term ``CAIR 
designated representative'' is used insubparts AAA through III of this 
part, the term shall be construed toinclude the CAIR designated 
representative or any alternate CAIRdesignated representative.



Sec. 97.212  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any time upon receipt bythe 
Administrator of a superseding complete certificate ofrepresentation 
under Sec. 97.213. Notwithstanding any suchchange, all representations, 
actions, inactions, and submissions bythe previous CAIR designated 
representative before the time and datewhen the Administrator receives 
the superseding certificate ofrepresentation shall be binding on the new 
CAIR designatedrepresentative and the owners and operators of the 
CAIRSO2 source and the CAIR SO2 units at 
thesource.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under

[[Page 958]]

Sec. 97.213.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative and 
theowners and operators of the CAIR SO2 source and the 
CAIRSO2 units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR SO2 source or a CAIRSO2 unit is 
not included in the list of owners andoperators in the certificate of 
representation underSec. 97.213, such owner or operator shall be deemed 
to besubject to and bound by the certificate of representation, 
therepresentations, actions, inactions, and submissions of the 
CAIRdesignated representative and any alternate CAIR 
designatedrepresentative of the source or unit, and the decisions and 
orders ofthe permitting authority, the Administrator, or a court, as if 
theowner or operator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR SO2 source or a CAIR SO2unit, including 
the addition of a new owner or operator, the CAIRdesignated 
representative or any alternate CAIR designatedrepresentative shall 
submit a revision to the certificate ofrepresentation under Sec. 97.213 
amending the list of ownersand operators to include the change.



Sec. 97.213  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR SO2 source, and eachCAIR 
SO2 unit at the source, for which the certificate 
ofrepresentation is submitted, including identification and 
nameplatecapacity of each generator served by each such unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
SO2source and of each CAIR SO2 unit at the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR SO2 unit at the source.''
    (ii) ``I certify that I have all the necessary authority tocarry out 
my duties and responsibilities under the CAIRSO2 Trading 
Program on behalf of the owners and operatorsof the source and of each 
CAIR SO2 unit at the source andthat each such owner and 
operator shall be fully bound by myrepresentations, actions, inactions, 
or submissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR SO2 unit at the source shall bebound by any order 
issued to me by the Administrator, the permittingauthority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal orequitable title 
to, or a leasehold interest in, a CAIR SO2unit, or where a 
utility or industrial customer purchases power from aCAIR SO2 
unit under a life-of-the-unit, firm powercontractual arrangement, I 
certify that: I have given a written noticeof my selection as the `CAIR 
designated representative'or `alternate CAIR designated representative', 
asapplicable, and of the agreement by which I was selected to each 
ownerand operator of the source and of each CAIR SO2 unit 
atthe source; and CAIR SO2 allowances and proceeds 
oftransactions involving CAIR SO2 allowances will be deemedto 
be held or distributed in proportion to each holder's legal,equitable, 
leasehold, or contractual reservation or entitlement,except that, if 
such multiple holders have expressly provided for adifferent 
distribution of CAIR SO2 allowances by contract,CAIR 
SO2 allowances and proceeds of

[[Page 959]]

transactionsinvolving CAIR SO2 allowances will be deemed to 
be held ordistributed in accordance with the contract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
certificateof representation shall not be submitted to the permitting 
authorityor the Administrator. Neither the permitting authority nor 
theAdministrator shall be under any obligation to review or evaluate 
thesufficiency of such documents, if submitted.



Sec. 97.214  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 97.213 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
97.213 is received by theAdministrator.
    (b) Except as provided in Sec. 97.212(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
SO2 Trading Program.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR SO2 allowance transfers.



Sec. 97.215  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (a) or(b) of this 
section, the CAIR designated representative or alternateCAIR designated 
representative, as appropriate, must submit to theAdministrator a notice 
of delegation, in a format prescribed by theAdministrator, that includes 
the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate CAIR designated 
representative, as appropriate, andbefore this notice of delegation is 
superseded by another notice ofdelegation under 40 CFR 97.215(d) shall 
be deemed to be an electronicsubmission by me.''

[[Page 960]]

    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 97.215(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
97.215 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of 
thissection shall be effective, with regard to the CAIR 
designatedrepresentative or alternate CAIR designated representative 
identifiedin such notice, upon receipt of such notice by the 
Administrator anduntil receipt by the Administrator of a superseding 
notice ofdelegation submitted by such CAIR designated representative 
oralternate CAIR designated representative, as appropriate. 
Thesuperseding notice of delegation may replace any previously 
identifiedagent, add a new agent, or eliminate entirely any delegation 
ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.



                           Subpart CCC_Permits



Sec. 97.220  General CAIR SO2 Trading Program permit requirements.

    (a) For each CAIR SO2 source required to have a titleV 
operating permit or required, under subpart III of this part, tohave a 
title V operating permit or other federally enforceable permit,such 
permit shall include a CAIR permit administered by the 
permittingauthority for the title V operating permit or the 
federallyenforceable permit as applicable. The CAIR portion of the title 
Vpermit or other federally enforceable permit as applicable shall 
beadministered in accordance with the permitting authority's title 
Voperating permits regulations promulgated under part 70 or 71 of 
thischapter or the permitting authority's regulations for other 
federallyenforceable permits as applicable, except as provided otherwise 
bySec. 97.205, this subpart, and subpart III of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRSO2 source and the CAIR SO2 units at thesource 
covered by the CAIR permit, all applicable CAIR SO2Trading 
Program, CAIR NOX Annual Trading Program, and 
CAIRNOX Ozone Season Trading Program requirements and shall 
bea complete and separable portion of the title V operating permit 
orother federally enforceable permit under paragraph (a) of thissection.



Sec. 97.221  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
SO2 source required to have a title V operatingpermit shall 
submit to the permitting authority a complete CAIR permitapplication 
under Sec. 97.222 for the source covering eachCAIR SO2 unit 
at the source at least 18 months (or suchlesser time provided by the 
permitting authority) before the later ofJanuary 1, 2010 or the date on 
which the CAIR SO2 unitcommences commercial operation, except 
as provided inSec. 97.283(a).
    (b) Duty to reapply. For a CAIR SO2 sourcerequired to 
have a title V operating permit, the CAIR designatedrepresentative shall 
submit a complete CAIR permit application underSec. 97.222 for the 
source covering each CAIRSO2 unit at the source to renew the 
CAIR permit inaccordance with the permitting authority's title V 
operating permitsregulations addressing permit renewal, except as 
provided inSec. 97.283(b).



Sec. 97.222  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR SO2 source for which 
theapplication is submitted, in a format prescribed by the 
permittingauthority:
    (a) Identification of the CAIR SO2 source;
    (b) Identification of each CAIR SO2 unit at the 
CAIRSO2 source; and
    (c) The standard requirements under Sec. 97.206.

[[Page 961]]



Sec. 97.223  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all lements required for a complete CAIR 
permitapplication under Sec. 97.222.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 97.202 and, upon recordationby the 
Administrator under subpart FFF, GGG, or III of this part,every 
allocation, transfer, or deduction of a CAIR SO2allowance to 
or from the compliance account of the CAIRSO2 source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRSO2 source's title V operating permit or other 
federallyenforceable permit as applicable.



Sec. 97.224  CAIR permit revisions.

    Except as provided in Sec. 97.223(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subparts DDD--EEE [Reserved]



           Subpart FFF_CAIR SO[bdi2] Allowance Tracking System



Sec. 97.250  [Reserved]



Sec. 97.251  Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 97.284(e), upon 
receipt of a complete certificate ofrepresentation under Sec. 97.213, 
the Administrator willestablish a compliance account for the CAIR 
SO2 source forwhich the certificate of representation was 
submitted, unless thesource already has a compliance account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR SO2 allowances.An application for a general 
account may designate one and only oneCAIR authorized account 
representative and one and only one alternateCAIR authorized account 
representative who may act on behalf of theCAIR authorized account 
representative. The agreement by which thealternate CAIR authorized 
account representative is selected shallinclude a procedure for 
authorizing the alternate CAIR authorizedaccount representative to act 
in lieu of the CAIR authorized accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of the CAIRauthorized account 
representative and any alternate CAIR authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR SO2 allowances held inthe general account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount representative, as applicable, by an agreement that is 
bindingon all persons who have an ownership interest with respect to 
CAIRSO2 allowances held in the general account. I certify 
thatI have all the necessary authority to carry out my duties 
andresponsibilities under the CAIR SO2 Trading Program 
onbehalf of such persons and that each such person shall be fully 
boundby my representations, actions, inactions, or submissions and by 
anyorder or decision issued to me by the Administrator or a 
courtregarding the general account.''
    (E) The signature of the CAIR authorized account representativeand

[[Page 962]]

any alternate CAIR authorized account representative and thedates 
signed.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receiptby 
the Administrator of a complete application for a general accountunder 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR SO2 allowances held in the generalaccount in all matters 
pertaining to the CAIR SO2 TradingProgram, notwithstanding 
any agreement between the CAIR authorizedaccount representative or any 
alternate CAIR authorized accountrepresentative and such person. Any 
such person shall be bound by anyorder or decision issued to the CAIR 
authorized account representativeor any alternate CAIR authorized 
account representative by theAdministrator or a court regarding the 
general account.
    (C) Any representation, action, inaction, or submission by 
anyalternate CAIR authorized account representative shall be deemed to 
bea representation, action, inaction, or submission by the 
CAIRauthorized account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to CAIRSO2 allowances held in the general account. Each 
suchsubmission shall include the following certification statement by 
theCAIR authorized account representative or any alternate 
CAIRauthorized account representative: ``I am authorized to makethis 
submission on behalf of the persons having an ownership interestwith 
respect to the CAIR SO2 allowances held in thegeneral 
account. I certify under penalty of law that I havepersonally examined, 
and am familiar with, the statements andinformation submitted in this 
document and all its attachments. Basedon my inquiry of those 
individuals with primary responsibility forobtaining the information, I 
certify that the statements andinformation are to the best of my 
knowledge and belief true, accurate,and complete. I am aware that there 
are significant penalties forsubmitting false statements and information 
or omitting requiredstatements and information, including the 
possibility of fine orimprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by the Administrator of a 
superseding complete application fora general account under paragraph 
(b)(1) of this section.Notwithstanding any such change, all 
representations, actions,inactions, and submissions by the previous CAIR 
authorized accountrepresentative before the time and date when the 
Administratorreceives the superseding application for a general account 
shall bebinding on the new CAIR authorized account representative and 
thepersons with an ownership interest with respect to the 
CAIRSO2 allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a

[[Page 963]]

superseding complete application for a generalaccount under paragraph 
(b)(1) of this section. Notwithstanding anysuch change, all 
representations, actions, inactions, and submissionsby the previous 
alternate CAIR authorized account representativebefore the time and date 
when the Administrator receives thesuperseding application for a general 
account shall be binding on thenew alternate CAIR authorized account 
representative and the personswith an ownership interest with respect to 
the CAIR SO2allowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR SO2 allowances in the general account 
isnot included in the list of such persons in the application for 
ageneral account, such person shall be deemed to be subject to andbound 
by the application for a general account, the representation,actions, 
inactions, and submissions of the CAIR authorized accountrepresentative 
and any alternate CAIR authorized accountrepresentative of the account, 
and the decisions and orders of theAdministrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR SO2 allowances 
inthe general account, including the addition of a new person, the 
CAIRauthorized account representative or any alternate CAIR 
authorizedaccount representative shall submit a revision to the 
application fora general account amending the list of persons having an 
ownershipinterest with respect to the CAIR SO2 allowances in 
thegeneral account to include the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.
    (ii) Except as provided in paragraph (b)(3)(i) or (ii) of 
thissection, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternate CAIR authorized account representative or 
thefinality of any decision or order by the Administrator under the 
CAIRSO2 Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate 
CAIR authorized account representative for a generalaccount, including 
private legal disputes concerning the proceeds ofCAIR SO2 
allowance transfers.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
theAdministrator provided for or required under subparts FFF and GGG 
ofthis part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FFF and GGG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such

[[Page 964]]

CAIR authorizedaccount representative or alternate CAIR authorized 
accountrepresentative;
    (B) The name, address, e-mail address, telephone number, 
and,facsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 97.251(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``Until this notice of delegation is supersededby 
another notice of delegation under 40 CFR 97.251 (b)(5)(iv), Iagree to 
maintain an e-mail account and to notify the Administratorimmediately of 
any change in my e-mail address, unless all delegationof authority by me 
under 40 CFR 97.251 (b)(5) is terminated.''.
    (iv) A notice of delegation submitted under paragraph (b)(5)(iii)of 
this section shall be effective, with regard to the CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative, as appropriate. The superseding notice of 
delegationmay replace any previously identified agent, add a new agent, 
oreliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.



Sec. 97.252   Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR SO2 
AllowanceTracking System account, all submissions to the 
Administratorpertaining to the account, including, but not limited to, 
submissionsconcerning the deduction or transfer of CAIR 
SO2allowances in the account, shall be made only by the CAIR 
authorizedaccount representative for the account.



Sec. 97.253  Recordation of CAIR SO2 allowances.

    (a)(1) After a compliance account is established underSec. 
97.251(a) or Sec. 73.31(a) or (b) of thischapter, the Administrator 
will record in the compliance account anyCAIR SO2 allowance 
allocated to any CAIR SO2unit at the source for each of the 
30 years starting the later of 2010or the year in which the compliance 
account is established and anyCAIR SO2 allowance allocated 
for each of the 30 yearsstarting the later of 2010 or the year in which 
the compliance accountis established and transferred to the source in 
accordance withsubpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator 
hascompleted all deductions under Sec. 97.254(b), theAdministrator will 
record in the compliance account any CAIRSO2 allowance 
allocated to any CAIR SO2 unitat the source for the new 30th 
year (i.e., the year that is 30years after the calendar year for which 
such deductions are or

[[Page 965]]

could be made) and any CAIR SO2 allowance allocatedfor the 
new 30th year and transferred to the source in accordance withsubpart 
GGG of this part or subpart D of part 73 of this chapter.
    (b)(1) After a general account is established underSec. 97.251(b) 
or Sec. 73.31(c) of this chapter,the Administrator will record in the 
general account any CAIRSO2 allowance allocated for each of 
the 30 years startingthe later of 2010 or the year in which the general 
account isestablished and transferred to the general account in 
accordance withsubpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator 
hascompleted all deductions under Sec. 97.254(b), theAdministrator will 
record in the general account any CAIRSO2 allowance allocated 
for the new 30th year (i.e.,the year that is 30 years after the calendar 
year for which suchdeductions are or could be made) and transferred to 
the generalaccount in accordance with subpart GGG of this part or 
subpart D ofpart 73 of this chapter.
    (c) Serial numbers for allocated CAIR SO2allowances. When recording 
the allocation of CAIRSO2 allowances issued by a permitting 
authority underSec. 97.288, the Administrator will assign each such 
CAIRSO2 allowance a unique identification number that 
willinclude digits identifying the year of the control period for 
whichthe CAIR SO2 allowance is allocated.



Sec. 97.254  Compliance with CAIR SO2 emissions limitation.

    (a) Allowance transfer deadline. The CAIR SO2allowances 
are available to be deducted for compliance with a source'sCAIR 
SO2 emissions limitation for a control period in agiven 
calendar year only if the CAIR SO2 allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR SO2 allowance transfercorrectly submitted 
for recordation under Sec. Sec. 97.260and 97.261 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, 
inaccordance with Sec. 97.261, of CAIR SO2allowance 
transfers submitted for recordation in a source's complianceaccount by 
the allowance transfer deadline for a control period, theAdministrator 
will deduct from the compliance account CAIRSO2 allowances 
available under paragraph (a) of thissection in order to determine 
whether the source meets the CAIRSO2 emissions limitation for 
the control period asfollows:
    (1) For a CAIR SO2 source subject to an Acid 
Rainemissions limitation, the Administrator will, in the following 
order:
    (i) Deduct the amount of CAIR SO2 allowances,available 
under paragraph (a) of this section and not issued by apermitting 
authority under Sec. 97.288, that is requiredunder Sec. Sec. 73.35(b) 
and (c) of this part. If thereare sufficient CAIR SO2 
allowances to complete thisdeduction, the deduction will be treated as 
satisfying therequirements of Sec. Sec. 73.35(b) and (c) of 
thischapter.
    (ii) Deduct the amount of CAIR SO2 allowances, notissued 
by a permitting authority under Sec. 97.288, that isrequired under 
Sec. Sec. 73.35(d) and 77.5 of this part.If there are sufficient CAIR 
SO2 allowances to completethis deduction, the deduction will 
be treated as satisfying therequirements of Sec. Sec. 73.35(d) and 77.5 
of thischapter.
    (iii) Treating the CAIR SO2 allowances deducted 
underparagraph (b)(1)(i) of this section as also being deducted under 
thisparagraph (b)(1)(iii), deduct CAIR SO2 
allowancesavailable under paragraph (a) of this section (including any 
issued bya permitting authority under Sec. 97.288) in order todetermine 
whether the source meets the CAIR SO2 emissionslimitation for 
the control period, as follows:
    (A) Until the tonnage equivalent of the CAIR 
SO2allowances deducted equals, or exceeds in accordance with 
paragraphs(c)(1) and (2) of this section, the number of tons of total 
sulfurdioxide emissions, determined in accordance with subpart HHH of 
thispart, from all CAIR SO2 units at the source for 
thecontrol period; or
    (B) If there are insufficient CAIR SO2 allowances 
tocomplete the deductions

[[Page 966]]

in paragraph (b)(1)(iii)(A) of thissection, until no more CAIR 
SO2 allowances available underparagraph (a) of this section 
(including any issued by a permittingauthority under Sec. 97.288) 
remain in the complianceaccount.
    (2) For a CAIR SO2 source not subject to an Acid 
Rainemissions limitation, the Administrator will deduct 
CAIRSO2 allowances available under paragraph (a) of 
thissection (including any issued by a permitting authority underSec. 
97.288) in order to determine whether the source meetsthe CAIR 
SO2 emissions limitation for the control period,as follows:
    (i) Until the tonnage equivalent of the CAIR 
SO2allowances deducted equals, or exceeds in accordance with 
paragraphs(c)(1) and (2) of this section, the number of tons of total 
sulfurdioxide emissions, determined in accordance with subpart HHH of 
thispart, from all CAIR SO2 units at the source for 
thecontrol period; or
    (ii) If there are insufficient CAIR SO2 allowances 
tocomplete the deductions in paragraph (b)(2)(i) of this section, 
untilno more CAIR SO2 allowances available under paragraph 
(a)of this section (including any issued by a permitting authority 
underSec. 97.288) remain in the compliance account.
    (c)(1) Identification of CAIR SO2 allowancesby serial 
number. The CAIR authorized account representative for asource's 
compliance account may request that specific CAIRSO2 
allowances, identified by serial number, in thecompliance account be 
deducted for emissions or excess emissions for acontrol period in 
accordance with paragraph (b) or (d) of thissection. Such request shall 
be submitted to the Administrator by theallowance transfer deadline for 
the control period and include, in aformat prescribed by the 
Administrator, the identification of the CAIRSO2 source and 
the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRSO2 allowances under paragraph (b) or (d) of this 
sectionfrom the source's compliance account, in the absence of 
anidentification or in the case of a partial identification of 
CAIRSO2 allowances by serial number under paragraph (c)(1) 
ofthis section, on a first-in, first-out (FIFO) accounting basis in 
thefollowing order:
    (i) Any CAIR SO2 allowances that were allocated to 
theunits at the source for a control period before 2010, in the order 
ofrecordation;
    (ii) Any CAIR SO2 allowances that were allocated toany 
entity for a control period before 2010 and transferred andrecorded in 
the compliance account pursuant to subpart GGG of thispart or subpart D 
of part 73 of this chapter, in the order ofrecordation;
    (iii) Any CAIR SO2 allowances that were allocated tothe 
units at the source for a control period during 2010 through 2014,in the 
order of recordation;
    (iv) Any CAIR SO2 allowances that were allocated toany 
entity for a control period during 2010 through 2014 andtransferred and 
recorded in the compliance account pursuant to subpartGGG of this part 
or subpart D of part 73 of this chapter, in the orderof recordation;
    (v) Any CAIR SO2 allowances that were allocated to 
theunits at the source for a control period in 2015 or later, in 
theorder of recordation; and
    (vi) Any CAIR SO2 allowances that were allocated toany 
entity for a control period in 2015 or later and transferred andrecorded 
in the compliance account pursuant to subpart GGG of thispart or subpart 
D of part 73 of this chapter, in the order ofrecordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR SO2source has excess 
emissions, the Administrator will deduct from thesource's compliance 
account the tonnage equivalent in CAIRSO2 allowances, 
allocated for the control period in theimmediately following calendar 
year (including any issued by apermitting authority under Sec. 97.288), 
equal to, orexceeding in accordance with paragraphs (c)(1) and (2) of 
this section3 times the following amount: the number of tons of the 
source'sexcess emissions minus, if the source is subject to an Acid 
Rainemissions limitation, the amount of the CAIR 
SO2allowances required to be deducted under paragraph 
(b)(1)(ii) of thissection.

[[Page 967]]

    (2) Any allowance deduction required under paragraph (d)(1)of this 
section shall not affect the liability of the owners andoperators of the 
CAIR SO2 source or the CAIRSO2 units at the source 
for any fine, penalty, orassessment, or their obligation to comply with 
any other remedy, forthe same violations, as ordered under the Clean Air 
Act or applicableState law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart III.
    (f) Administrator's action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the 
CAIR SO2 Trading Program and makeappropriate adjustments of 
the information in the submissions.
    (2) The Administrator may deduct CAIR SO2 allowancesfrom 
or transfer CAIR SO2 allowances to a source'scompliance 
account based on the information in the submissions, asadjusted under 
paragraph (f)(1) of this section, and record suchdeductions and 
transfers.



Sec. 97.255  Banking.

    (a) CAIR SO2 allowances may be banked for future useor 
transfer in a compliance account or a general account in accordancewith 
paragraph (b) of this section.
    (b) Any CAIR SO2 allowance that is held in acompliance 
account or a general account will remain in such accountunless and until 
the CAIR SO2 allowance is deducted ortransferred under Sec. 
97.254, Sec. 97.256, orsubpart GGG or III of this part.



Sec. 97.256  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR SO2Allowance 
Tracking System account. Within 10 business days of makingsuch 
correction, the Administrator will notify the CAIR authorizedaccount 
representative for the account.



Sec. 97.257  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
97.260 and 97.261 for any CAIRSO2 allowances in the account 
to one or more other CAIRSO2 Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
SO2 allowances, the Administrator may notify the 
CAIRauthorized account representative for the account that the 
accountwill be closed following 20 business days after the notice is 
sent.The account will be closed after the 20-day period unless, before 
theend of the 20-day period, the Administrator receives a 
correctlysubmitted transfer of CAIR SO2 allowances into the 
accountunder Sec. Sec. 97.260 and 97.261 or a statement submittedby the 
CAIR authorized account representative demonstrating to thesatisfaction 
of the Administrator good cause as to why the accountshould not be 
closed.



                Subpart GGG_CAIR SO2 Allowance Transfers



Sec. 97.260  Submission of CAIR SO2 allowance transfers.

    (a) A CAIR authorized account representative seeking recordationof a 
CAIR SO2 allowance transfer shall submit the transferto the 
Administrator. To be considered correctly submitted, the 
CAIRSO2 allowance transfer shall include the 
followingelements, in a format specified by the Administrator:
    (1) The account numbers of both the transferor and 
transfereeaccounts;
    (2) The serial number of each CAIR SO2 allowance thatis 
in the transferor account and is to be transferred; and
    (3) The name and signature of the CAIR authorized 
accountrepresentatives of the transferor and transferee accounts and 
thedates signed.
    (b)(1) The CAIR authorized account representative for thetransferee 
account can meet the requirements in paragraph (a)(3) ofthis section by 
submitting, in a format prescribed by theAdministrator, a statement 
signed by

[[Page 968]]

the CAIR authorized accountrepresentative and identifying each account 
into which any transfer ofallowances, submitted on or after the date on 
which the Administratorreceives such statement, is authorized. Such 
authorization shall bebinding on any CAIR authorized account 
representative for such accountand shall apply to all transfers into the 
account that are submittedon or after such date of receipt, unless and 
until the Administratorreceives a statement signed by the CAIR 
authorized accountrepresentative retracting the authorization for the 
account.
    (2) The statement under paragraph (b)(1) of this section 
shallinclude the following: ``By this signature I authorize anytransfer 
of allowances into each account listed herein, except that Ido not waive 
any remedies under State or Federal law to obtaincorrection of any 
erroneous transfers into such accounts. Thisauthorization shall be 
binding on any CAIR authorized accountrepresentative for such account 
unless and until a statement signed bythe CAIR authorized account 
representative retracting thisauthorization for the account is received 
by theAdministrator.''



Sec. 97.261  EPA recordation.

    (a) Within 5 business days (except as necessary to perform atransfer 
in perpetuity of CAIR SO2 allowances allocated toa CAIR 
SO2 unit or as provided in paragraph (b) of thissection) of 
receiving a CAIR SO2 allowance transfer, theAdministrator 
will record a CAIR SO2 allowance transfer bymoving each CAIR 
SO2 allowance from the transferor accountto the transferee 
account as specified by the request, provided that:
    (1) The transfer is correctly submitted underSec. 97.260;
    (2) The transferor account includes each CAIR 
SO2allowance identified by serial number in the transfer; and
    (3) The transfer is in accordance with the limitation on 
transferunder Sec. 74.42 of this chapter and Sec. 74.47(c)of this 
chapter, as applicable.
    (b) A CAIR SO2 allowance transfer that is submittedfor 
recordation after the allowance transfer deadline for a controlperiod 
and that includes any CAIR SO2 allowances allocatedfor any 
control period before such allowance transfer deadline willnot be 
recorded until after the Administrator completes the deductionsunder 
Sec. 97.254 for the control period immediately beforesuch allowance 
transfer deadline.
    (c) Where a CAIR SO2 allowance transfer submitted 
forrecordation fails to meet the requirements of paragraph (a) of 
thissection, the Administrator will not record such transfer.



Sec. 97.262  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR SO2 allowance transfer underSec. 
97.261, the Administrator will notify the CAIRauthorized account 
representatives of both the transferor andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR SO2 allowance transfer that fails tomeet 
the requirements of Sec. 97.261(a), the Administratorwill notify the 
CAIR authorized account representatives of bothaccounts subject to the 
transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
SO2 allowance transfer for recordation followingnotification 
of non-recordation.



                  Subpart HHH_Monitoring and Reporting



Sec. 97.270  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR SO2 unit, 
shallcomply with the monitoring, recordkeeping, and reporting 
requirementsas provided in this subpart and in subparts F and G of part 
75 of thischapter. For purposes of complying with such requirements, 
thedefinitions in Sec. 97.202 and in Sec. 72.2 ofthis chapter shall 
apply, and the terms ``affected unit,''``designated representative,'' 
and ``continuousemission monitoring system'' (or ``CEMS'') in part75 of 
this chapter shall be deemed to refer to the

[[Page 969]]

terms``CAIR SO2 unit,'' ``CAIR designatedrepresentative,'' 
and ``continuous emission monitoringsystem'' or (``CEMS'') respectively, 
as defined inSec. 97.202. The owner or operator of a unit that is not 
aCAIR SO2 unit but that is monitored underSec. 75.16(b)(2) 
of this chapter shall comply with the samemonitoring, recordkeeping, and 
reporting requirements as a CAIRSO2 unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR SO2 
unitshall:
    (1) Install all monitoring systems required under this subpart 
formonitoring SO2 mass emissions and individual unit 
heatinput (including all systems required to monitor 
SO2concentration, stack gas moisture content, stack gas flow 
rate,CO2 or O2 concentration, and fuel flow 
rate,as applicable, in accordance with Sec. Sec. 75.11 and75.16 of this 
chapter);
    (2) Successfully complete all certification tests required 
underSec. 97.271 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet the monitoringsystem 
certification and other requirements of paragraphs (a)(1) and(2) of this 
section on or before the following dates. The owner oroperator shall 
record, report, and quality-assure the data from themonitoring systems 
under paragraph (a)(1) of this section on and afterthe following dates.
    (1) For the owner or operator of a CAIR SO2 unit 
thatcommences commercial operation before July 1, 2008, by January 
1,2009.
    (2) For the owner or operator of a CAIR SO2 unit 
thatcommences commercial operation on or after July 1, 2008, by the 
laterof the following dates:
    (i) January 1, 2009; or
    (ii) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation.
    (3) For the owner or operator of a CAIR SO2 unit forwhich 
construction of a new stack or flue or installation of add-
onSO2 emission controls is completed after the 
applicabledeadline under paragraph (b)(1), (2), (4), or (5) of this 
section, by90 unit operating days or 180 calendar days, whichever occurs 
first,after the date on which emissions first exit to the atmosphere 
throughthe new stack or flue or add-on SO2 emissions 
controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a unit for which a CAIR opt-
inpermit application is submitted and not withdrawn and a CAIR opt-
inpermit is not yet issued or denied under subpart III of this part, 
bythe date specified in Sec. 97.284(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of 
thissection, for the owner or operator of a CAIR SO2 opt-
inunit under subpart III of this part, by the date on which the 
CAIRSO2 opt-in unit enters the CAIR SO2 
TradingProgram as provided in Sec. 97.284(g).
    (c) Reporting data. The owner or operator of a CAIRSO2 
unit that does not meet the applicable compliance dateset forth in 
paragraph (b) of this section for any monitoring systemunder paragraph 
(a)(1) of this section shall, for each such monitoringsystem, determine, 
record, and report maximum potential (or, asappropriate, minimum 
potential) values for SO2concentration, stack gas flow rate, 
stack gas moisture content, fuelflow rate, and any other parameters 
required to determineSO2 mass emissions and heat input in 
accordance withSec. 75.31(b)(2) or (c)(3) of this chapter or section 
2.4 ofappendix D to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRSO2 
unit shall use any alternative monitoring system,alternative reference 
method, or any other alternative to anyrequirement of this subpart 
without having obtained prior writtenapproval in accordance with Sec. 
97.275.
    (2) No owner or operator of a CAIR SO2 unit shalloperate 
the unit so as to discharge, or allow to be discharged,

[[Page 970]]

SO2 emissions to the atmosphere without accountingfor all 
such emissions in accordance with the applicable provisions ofthis 
subpart and part 75 of this chapter.
    (3) No owner or operator of a CAIR SO2 unit shalldisrupt 
the continuous emission monitoring system, any portionthereof, or any 
other approved emission monitoring method, and therebyavoid monitoring 
and recording SO2 mass emissionsdischarged into the 
atmosphere or heat input, except for periods ofrecertification or 
periods when calibration, quality assurancetesting, or maintenance is 
performed in accordance with the applicableprovisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR SO2 unit shallretire 
or permanently discontinue use of the continuous emissionmonitoring 
system, any component thereof, or any other approvedmonitoring system 
under this subpart, except under any one of thefollowing circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 97.205 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
Administrator for use at that unit that provides emission datafor the 
same pollutant or parameter as the retired or discontinuedmonitoring 
system; or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
97.271(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRSO2 unit is subject to the applicable provisions of 
part75 of this chapter concerning units in long-term cold storage.



Sec. 97.271  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR SO2 unit shall 
beexempt from the initial certification requirements of this section 
fora monitoring system under Sec. 97.270(a)(1) if the 
followingconditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix Band appendix D to part 75 
of this chapter are fully met for thecertified monitoring system 
described in paragraph (a)(1) of thissection.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 97.270(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.
    (c) [Reserved]
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR SO2 unit shall comply with thefollowing 
initial certification and recertification procedures, for acontinuous 
monitoring system (i.e., a continuous emissionmonitoring system and an 
excepted monitoring system under appendix Dto part 75 of this chapter) 
under Sec. 97.270(a)(1). Theowner or operator of a unit that qualifies 
to use the low massemissions excepted monitoring methodology under Sec. 
75.19of this chapter or that qualifies to use an alternative 
monitoringsystem under subpart E of part 75 of this chapter shall comply 
withthe procedures in paragraph (e) or (f) of this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
97.270(a)(1) (including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 97.270(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial 
certification inaccordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change in any certifiedcontinuous 
emission monitoring system under Sec. 97.270(a)(1)

[[Page 971]]

that may significantly affect the ability of the system toaccurately 
measure or record SO2 mass emissions or heatinput rate or to 
meet the quality-assurance and quality-controlrequirements of Sec. 
75.21 of this chapter or appendix B topart 75 of this chapter, the owner 
or operator shall recertify themonitoring system in accordance with 
Sec. 75.20(b) of thischapter. Furthermore, whenever the owner or 
operator makes areplacement, modification, or change to the flue gas 
handling systemor the unit's operation that may significantly change the 
stack flowor concentration profile, the owner or operator shall 
recertify eachcontinuous emission monitoring system whose accuracy is 
potentiallyaffected by the change, in accordance with Sec. 75.20(b) 
ofthis chapter. Examples of changes to a continuous emission 
monitoringsystem that require recertification include: replacement of 
theanalyzer, complete replacement of an existing continuous 
emissionmonitoring system, or change in location or orientation of 
thesampling probe or site. Any fuel flowmeter system underSec. 
97.270(a)(1) is subject to the recertificationrequirements in Sec. 
75.20(g)(6) of this chapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and recertification of acontinuous monitoring system under 
Sec. 97.270(a)(1). Forrecertifications, replace the words 
``certification'' and``initial certification'' with the 
word``recertification'', replace the word``certified'' with the word 
``recertified,''and follow the procedures in Sec. Sec. 75.20(b)(5) and 
(g)(7) of this chapter in lieu of the procedures in paragraph 
(d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the appropriate EPA Regional Office andthe Administrator 
written notice of the dates of certificationtesting, in accordance with 
Sec. 97.273.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the Administrator a certificationapplication for each 
monitoring system. A complete certificationapplication shall include the 
information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined inaccordance with Sec. 
75.20(a)(3) of this chapter. Aprovisionally certified monitoring system 
may be used under the CAIRSO2 Trading Program for a period 
not to exceed 120 daysafter receipt by the Administrator of the complete 
certificationapplication for the monitoring system under paragraph 
(d)(3)(ii) ofthis section. Data measured and recorded by the 
provisionallycertified monitoring system, in accordance with the 
requirements ofpart 75 of this chapter, will be considered valid 
quality-assured data(retroactive to the date and time of provisional 
certification),provided that the Administrator does not invalidate the 
provisionalcertification by issuing a notice of disapproval within 120 
days ofthe date of receipt of the complete certification application by 
theAdministrator.
    (iv) Certification application approval process. TheAdministrator 
will issue a written notice of approval or disapprovalof the 
certification application to the owner or operator within 120days of 
receipt of the complete certification application underparagraph 
(d)(3)(ii) of this section. In the event the Administratordoes not issue 
such a notice within such 120-day period, eachmonitoring system that 
meets the applicable performance requirementsof part 75 of this chapter 
and is included in the certificationapplication will be deemed certified 
for use under the CAIRSO2 Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then theAdministrator will 
issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the Administrator will issue awritten notice of 
incompleteness that sets a reasonable date by

[[Page 972]]

which the CAIR designated representative must submit theadditional 
information required to complete the certificationapplication. If the 
CAIR designated representative does not complywith the notice of 
incompleteness by the specified date, then theAdministrator may issue a 
notice of disapproval under paragraph (d)(3)(iv)(C) of this section. The 
120-day review period shall not beginbefore receipt of a complete 
certification application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the Administratorwill issue a written notice of 
disapproval of the certificationapplication. Upon issuance of such 
notice of disapproval, theprovisional certification is invalidated by 
the Administrator and thedata measured and recorded by each uncertified 
monitoring system shallnot be considered valid quality-assured data 
beginning with the dateand hour of provisional certification (as defined 
underSec. 75.20(a)(3) of this chapter). The owner or operatorshall 
follow the procedures for loss of certification in paragraph (d)(3)(v) 
of this section for each monitoring system that is disapprovedfor 
initial certification.
    (D) Audit decertification. The Administrator may issue anotice of 
disapproval of the certification status of a monitor inaccordance with 
Sec. 97.272(b).
    (v) Procedures for loss of certification. If theAdministrator issues 
a notice of disapproval of a certificationapplication under paragraph 
(d)(3)(iv)(C) of this section or a noticeof disapproval of certification 
status under paragraph (d)(3)(iv)(D)of this section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified under Sec. 75.20(a)(5)(i)or 
(g)(7) of this chapter:
    (1) For a disapproved SO2 pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of SO2 and the maximumpotential flow rate, as 
defined in sections 2.1.1.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (2) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (3) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the Administrator's notice of disapproval, no later 
than30 unit operating days after the date of issuance of the notice 
ofdisapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) exceptedmethodology under Sec. 75.19 of this 
chapter shall meet theapplicable certification and recertification 
requirements inSec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
theowner or operator of such a unit elects to certify a fuel 
flowmetersystem for heat input determination, the owner or operator 
shall alsomeet the certification and recertification requirements 
inSec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator under subpart 
E ofpart 75 of

[[Page 973]]

this chapter shall comply with the applicablenotification and 
application procedures of Sec. 75.20(f) ofthis chapter.



Sec. 97.272  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D of 
appendixD to part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 97.271 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the Administrator will issue a notice of disapproval of 
thecertification status of such monitoring system. For the purposes 
ofthis paragraph, an audit shall be either a field audit or an audit 
ofany information submitted to the permitting authority or 
theAdministrator. By issuing the notice of disapproval, the 
Administratorrevokes prospectively the certification status of the 
monitoringsystem. The data measured and recorded by the monitoring 
system shallnot be considered valid quality-assured data from the date 
of issuanceof the notification of the revoked certification status until 
the dateand time that the owner or operator completes subsequently 
approvedinitial certification or recertification tests for the 
monitoringsystem. The owner or operator shall follow the applicable 
initialcertification or recertification procedures in Sec. 97.271for 
each disapproved monitoring system.



Sec. 97.273  Notifications.

    The CAIR designated representative for a CAIR SO2 
unitshall submit written notice to the Administrator in accordance 
withSec. 75.61 of this chapter. Sec. 97.274Recordkeeping and 
reporting.
    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements insubparts F and 
G of part 75 of this chapter, and the requirements ofSec. 97.210(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIRSO2 
unit shall comply with requirements ofSec. 75.62 of this chapter and, 
for a unit for which a CAIRopt-in permit application is submitted and 
not withdrawn and a CAIRopt-in permit is not yet issued or denied under 
subpart III of thispart, Sec. Sec. 97.283 and 97.284(a).
    (c) Certification Applications. The CAIR designatedrepresentative 
shall submit an application to the Administrator within45 days after 
completing all initial certification or recertificationtests required 
under Sec. 97.271, including the informationrequired under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report 
theSO2 mass emissions data and heat input data for the 
CAIRSO2 unit, in an electronic quarterly report in a 
formatprescribed by the Administrator, for each calendar quarter 
beginningwith:
    (i) For a unit that commences commercial operation before July 
1,2008, the calendar quarter covering January 1, 2009 through March 
31,2009;
    (ii) For a unit that commences commercial operation on or afterJuly 
1, 2008, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 97.270(b), unless thatquarter is the third or 
fourth quarter of 2008, in which casereporting shall commence in the 
quarter covering January 1, 2009through March 31, 2009;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart III of this part, the calendar quartercorresponding to the date 
specified in Sec. 97.284(b); and

[[Page 974]]

    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of thissection, 
for a CAIR SO2 opt-in unit under subpart III ofthis part, the 
calendar quarter corresponding to the date on which theCAIR 
SO2 opt-in unit enters the CAIR SO2Trading Program 
as provided in Sec. 97.284(g).
    (2) The CAIR designated representative shall submit each 
quarterlyreport to the Administrator within 30 days following the end of 
thecalendar quarter covered by the report. Quarterly reports shall 
besubmitted in the manner specified in Sec. 75.64 of thischapter.
    (3) For CAIR SO2 units that are also subject to anAcid 
Rain emissions limitation or the CAIR NOX AnnualTrading 
Program, CAIR NOX Ozone Season Trading Program, orHg Budget 
Trading Program, quarterly reports shall include theapplicable data and 
information required by subparts F through I ofpart 75 of this chapter 
as applicable, in addition to theSO2 mass emission data, heat 
input data, and otherinformation required by this subpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by the Administrator) in supportof each quarterly report 
based on reasonable inquiry of those personswith primary responsibility 
for ensuring that all of the unit'semissions are correctly and fully 
monitored. The certification shallstate that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications; and
    (2) For a unit with add-on SO2 emission controls andfor 
all hours where SO2 data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
SO2 emissions.



Sec. 97.275  Petitions.

    The CAIR designated representative of a CAIR SO2 unitmay 
submit a petition under Sec. 75.66 of this chapter tothe Administrator 
requesting approval to apply an alternative to anyrequirement of this 
subpart. Application of an alternative to anyrequirement of this subpart 
is in accordance with this subpart only tothe extent that the petition 
is approved in writing by theAdministrator, in consultation with the 
permitting authority.



                 Subpart III_CAIR SO[bdi2] Opt-in Units



Sec. 97.280  Applicability.

    A CAIR SO2 opt-in unit must be a unit that:
    (a) Is located in a State that submits, and for which 
theAdministrator approves, a State implementation plan revision 
inaccordance with Sec. 51.124(r)(1), (2), or (3) of thischapter 
establishing procedures concerning CAIR opt-in units;
    (b) Is not a CAIR SO2 unit under Sec. 97.204and is not 
covered by a retired unit exemption underSec. 97.205 that is in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect and is not anopt-in source under part 74 
of this chapter;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart HH 
ofthis part.



Sec. 97.281   General.

    (a) Except as otherwise provided in Sec. Sec. 97.201through 97.204, 
Sec. Sec. 97.206 through 97.208, andsubparts BBB and CCC and subparts 
FFF through HHH of this part, a CAIRSO2 opt-in unit shall be 
treated as a CAIR SO2unit for purposes of applying such 
sections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HHH of this part to a unit for which aCAIR opt-
in permit application is submitted and not withdrawn and aCAIR opt-in 
permit is not yet issued or denied under this subpart,such unit shall be 
treated as a CAIR SO2 unit beforeissuance of a CAIR opt-in 
permit for such unit.

[[Page 975]]



Sec. 97.282  CAIR designated representative.

    Any CAIR SO2 opt-in unit, and any unit for which aCAIR 
opt-in permit application is submitted and not withdrawn and aCAIR opt-
in permit is not yet issued or denied under this subpart,located at the 
same source as one or more CAIR SO2 unitsshall have the same 
CAIR designated representative and alternate CAIRdesignated 
representative as such CAIR SO2 units.



Sec. 97.283  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements for aCAIR 
SO2 opt-in unit in Sec. 97.280 may applyfor an initial CAIR 
opt-in permit at any time, except as providedunder Sec. 97.286(f) and 
(g), and, in order to apply, mustsubmit the following:
    (1) A complete CAIR permit application underSec. 97.222;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR SO2 unit under Sec. 97.204and is not 
covered by a retired unit exemption underSec. 97.205 that is in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Is not and, so long as the unit is a CAIR SO2opt-in 
unit, will not become, an opt-in source under part 74 of thischapter;
    (iv) Vents all of its emissions to a stack; and
    (v) Has documented heat input for more than 876 hours during the 
6months immediately preceding submission of the CAIR permit 
applicationunder Sec. 97.222;
    (3) A monitoring plan in accordance with subpart HHH of this part;
    (4) A complete certificate of representation underSec. 97.213 
consistent with Sec. 97.282, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR SO2 allowances underSec. 97.288(b) or Sec. 
97.288(c) (subject to theconditions in Sec. Sec. 97.284(h) and 
97.286(g)), to theextent such allocation is provided in a State 
implementation planrevision submitted in accordance with Sec. 
51.124(r)(1),(2), or (3) of this chapter and approved by the 
Administrator. Ifallocation under Sec. 97.288(c) is requested, this 
statementshall include a statement that the owners and operators of the 
unitintend to repower the unit before January 1, 2015 and that they 
willprovide, upon request, documentation demonstrating such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
SO2 opt-in unit shall submit a complete CAIRpermit 
application under Sec. 97.222 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority'sregulations for title V 
operating permits, or the permittingauthority's regulations for other 
federally enforceable permits ifapplicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR SO2 opt-in unit 
fromthe CAIR SO2 Trading Program in accordance withSec. 
97.286 or the unit becomes a CAIR SO2 unitunder Sec. 97.204, 
the CAIR SO2 opt-in unitshall remain subject to the 
requirements for a CAIR SO2opt-in unit, even if the CAIR 
designated representative for the CAIRSO2 opt-in unit fails 
to submit a CAIR permit applicationthat is required for renewal of the 
CAIR opt-in permit under paragraph(b)(1) of this section.

[65 FR 2727, Jan 18, 2000, as amended by 71 FR 74795, Dec. 13,2006]



Sec. 97.284  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 97.183 is submitted in accordance with thefollowing, to the extent 
provided in a State implementation planrevision submitted in accordance 
with Sec. 51.124(r)(1),(2), or (3) of this chapter and approved by the 
Administrator:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit

[[Page 976]]

under Sec. 97.283.A monitoring plan is sufficient, for purposes of 
interim review, ifthe plan appears to contain information demonstrating 
that theSO2 emissions rate and heat input of the unit and 
allother applicable parameters are monitored and reported in 
accordancewith subpart HHH of this part. A determination of sufficiency 
shallnot be construed as acceptance or approval of the monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the SO2 emissions rate and theheat input of the unit 
and all other applicable parameters, inaccordance with subpart HHH of 
this part, starting on the date ofcertification of the appropriate 
monitoring systems under subpart HHHof this part and continuing until a 
CAIR opt-in permit is denied underSec. 97.284(f) or, if a CAIR opt-in 
permit is issued, thedate and time when the unit is withdrawn from the 
CAIR SO2Trading Program in accordance with Sec. 97.286.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR SO2Trading Program 
under Sec. 97.284(g), during which periodmonitoring system availability 
must not be less than 90 percent undersubpart HHH of this part and the 
unit must be in full compliance withany applicable State or Federal 
emissions or emissions-relatedrequirements.
    (2) To the extent the SO2 emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HHH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HHH of this part and the unit is 
infull compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR SO2Trading 
Program under Sec. 97.284(g), such information shallbe used as provided 
in paragraphs (c) and (d) of this section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline SO2 emission rate. The unit'sbaseline SO2 
emission rate shall equal:
    (1) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's SO2emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on SO2 emission controls during anysuch control 
periods, the average of the amounts of the unit'sSO2 
emissions rate (in lb/mmBtu) for the control periodsunder paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's SO2 emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
SO2 emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sSO2 emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
SO2 emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline SO2 emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows

[[Page 977]]

that the unit meets the requirements for aCAIR SO2 opt-in 
unit in Sec. 97.280 and meetsthe elements certified in Sec. 
97.283(a)(2), the permittingauthority will issue a CAIR opt-in permit. 
The permitting authoritywill provide a copy of the CAIR opt-in permit to 
the Administrator,who will then establish a compliance account for the 
source thatincludes the CAIR SO2 opt-in unit unless the 
sourcealready has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in permit for the unit, thepermitting authority 
determines that the CAIR designatedrepresentative fails to show that the 
unit meets the requirements fora CAIR SO2 opt-in unit in 
Sec. 97.280 or meetsthe elements certified in Sec. 97.283(a)(2), the 
permittingauthority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR SO2 TradingProgram. A unit for which an 
initial CAIR opt-in permit is issuedby the permitting authority shall 
become a CAIR SO2 opt-inunit, and a CAIR SO2 unit, 
as of the later of January 1,2010 or January 1 of the first control 
period during which such CAIRopt-in permit is issued.
    (h) Repowered CAIR SO2 opt-in unit. (1) IfCAIR designated 
representative requests, and the permitting authorityissues a CAIR opt-
in permit providing for, allocation to a CAIRSO2 opt-in unit 
of CAIR SO2 allowances underSec. 97.288(c) and such unit is 
repowered after its date ofentry into the CAIR SO2 Trading 
Program under paragraph(g) of this section, the repowered unit shall be 
treated as a CAIRSO2 opt-in unit replacing the original 
CAIRSO2 opt-in unit, as of the date of start-up of 
therepowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline SO2 emission rate as the originalCAIR SO2 
opt-in unit, and the original CAIRSO2 opt-in unit shall no 
longer be treated as a CAIRSO2 opt-in unit or a CAIR 
SO2 unit.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.285  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 97.222;
    (2) The certification in Sec. 97.283(a)(2);
    (3) The unit's baseline heat input under Sec. 97.284(c);
    (4) The unit's baseline SO2 emission rate underSec. 
97.284(d);
    (5) A statement whether the unit is to be allocated 
CAIRSO2 allowances under Sec. 97.288(b) orSec. 97.288(c) 
(subject to the conditions inSec. Sec. 97.284(h) and 97.286(g));
    (6) A statement that the unit may withdraw from the 
CAIRSO2 Trading Program only in accordance withSec. 97.286; 
and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
97.287.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 97.202 and, 
uponrecordation by the Administrator under subpart FFF or GGG of this 
partor this subpart, every allocation, transfer, or deduction of 
CAIRSO2 allowances to or from the compliance account of 
thesource that includes a CAIR SO2 opt-in unit covered by 
theCAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR SO2 opt-in unit is located and in atitle V operating 
permit or other federally enforceable permit for thesource.



Sec. 97.286  Withdrawal from CAIR SO2 Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRSO2 opt-in unit may withdraw from the CAIR 
SO2Trading Program, but only if the permitting authority 
issues anotification to the CAIR designated representative of the 
CAIRSO2 opt-in unit of the acceptance of the withdrawal of 
theCAIR

[[Page 978]]

SO2 opt-in unit in accordance with paragraph (d)of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIRSO2 
opt-in unit from the CAIR SO2 TradingProgram, the CAIR 
designated representative of the CAIRSO2 opt-in unit shall 
submit to the permitting authority arequest to withdraw effective as of 
midnight of December 31 of aspecified calendar year, which date must be 
at least 4 years afterDecember 31 of the year of entry into the CAIR 
SO2 TradingProgram under Sec. 97.284(g). The request must be 
submittedno later than 90 days before the requested effective date 
ofwithdrawal.
    (b) Conditions for withdrawal. Before a CAIR SO2opt-in 
unit covered by a request under paragraph (a) of this sectionmay 
withdraw from the CAIR SO2 Trading Program and theCAIR opt-in 
permit may be terminated under paragraph (e) of thissection, the 
following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRSO2 opt-
in unit must meet the requirement to hold CAIRSO2 allowances 
under Sec. 97.206(c) and cannothave any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR SO2 
opt-inunit CAIR SO2 allowances equal in amount to and 
allocatedfor the same or a prior control period as any CAIR 
SO2allowances allocated to the CAIR SO2 opt-in 
unit underSec. 97.288 for any control period for which the withdrawalis 
to be effective. If there are no remaining CAIR SO2units at 
the source, the Administrator will close the complianceaccount, and the 
owners and operators of the CAIR SO2 opt-in unit may submit a 
CAIR SO2 allowance transfer for anyremaining CAIR 
SO2 allowances to another CAIRSO2 Allowance 
Tracking System in accordance with subpartGGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR SO2 allowancesrequired), the 
permitting authority will issue a notification to theCAIR designated 
representative of the CAIR SO2 opt-in unitof the acceptance 
of the withdrawal of the CAIR SO2 opt-inunit as of midnight 
on December 31 of the calendar year for which thewithdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRSO2 opt-in unit that the CAIR SO2 opt-inunit's 
request to withdraw is denied. Such CAIR SO2 opt-inunit shall 
continue to be a CAIR SO2 opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR SO2 opt-inunit to terminate the 
CAIR opt-in permit for such unit as of theeffective date specified under 
paragraph (c)(1) of this section. Theunit shall continue to be a CAIR 
SO2 opt-in unit until theeffective date of the termination 
and shall comply with allrequirements under the CAIR SO2 
Trading Program concerningany control periods for which the unit is a 
CAIR SO2 opt-in unit, even if such requirements arise or must 
be complied withafter the withdrawal takes effect.
    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRSO2 opt-in unit's 
request to withdraw, the CAIR designatedrepresentative may submit 
another request to withdraw in accordancewith paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR SO2Trading Program. Once a CAIR 
SO2 opt-in unitwithdraws from the CAIR SO2 Trading 
Program and its CAIRopt-in permit is terminated under this section, the 
CAIR designatedrepresentative may not submit another application for a 
CAIR opt-inpermit under Sec. 97.283 for such CAIR SO2 opt-in 
unit before the date that is 4 years after the date on which 
thewithdrawal became effective. Such new application for a CAIR opt-
inpermit will be treated as an initial application for a CAIR opt-
inpermit under Sec. 97.284.

[[Page 979]]

    (g) Inability to withdraw. Notwithstanding paragraphs(a) through (f) 
of this section, a CAIR SO2 opt-in unitshall not be eligible 
to withdraw from the CAIR SO2Trading Program if the CAIR 
designated representative of the CAIRSO2 opt-in unit 
requests, and the permitting authorityissues a CAIR opt-in permit 
providing for, allocation to the CAIRSO2 opt-in unit of CAIR 
SO2 allowances underSec. 97.288(c).



Sec. 97.287  Change in regulatory status.

    (a) Notification. If a CAIR SO2 opt-in unitbecomes a CAIR 
SO2 unit under Sec. 97.204, thenthe CAIR designated 
representative shall notify in writing thepermitting authority and the 
Administrator of such change in the CAIRSO2 opt-in unit's 
regulatory status, within 30 days ofsuch change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
SO2 opt-in unit becomes a CAIR SO2unit under Sec. 
97.204, the permitting authority will revisethe CAIR SO2 opt-
in unit's CAIR opt-in permit to meet therequirements of a CAIR permit 
under Sec. 97.223, and removethe CAIR opt-in permit provisions, as of 
the date on which the CAIRSO2 opt-in unit becomes a CAIR 
SO2 unit underSec. 97.204.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes the CAIR SO2 opt-in unit thatbecomes 
a CAIR SO2 unit under Sec. 97.204, CAIRSO2 
allowances equal in amount to and allocated for thesame or a prior 
control period as:
    (A) Any CAIR SO2 allowances allocated to the 
CAIRSO2 opt-in unit under Sec. 97.288 for anycontrol period 
after the date on which the CAIR SO2 opt-inunit becomes a 
CAIR SO2 unit under Sec. 97.204;and
    (B) If the date on which the CAIR SO2 opt-in unitbecomes 
a CAIR SO2 unit under Sec. 97.204 is notDecember 31, the 
CAIR SO2 allowances allocated to the CAIRSO2 opt-
in unit under Sec. 97.288 for thecontrol period that includes the date 
on which the CAIRSO2 opt-in unit becomes a CAIR 
SO2 unit underSec. 97.204, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRSO2 opt-in unit becomes a CAIR SO2 unit 
underSec. 97.204 divided by the total number of days in thecontrol 
period and rounded to the nearest whole allowance asappropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRSO2 
opt-in unit that becomes a CAIR SO2 unitunder Sec. 97.204 
contains the CAIR SO2allowances necessary for completion of 
the deduction under paragraph(b)(2)(i) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.288  CAIR SO[bdi2] allowance allocations to CAIR SO[bdi2] opt-inunits.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 97.284(e), the permitting authority willallocate CAIR 
SO2 allowances to the CAIR SO2opt-in unit, and 
submit to the Administrator the allocation for thecontrol period in 
which a CAIR SO2 opt-in unit enters theCAIR SO2 
Trading Program under Sec. 97.284(g),in accordance with paragraph (b) 
or (c) of this section.
    (2) By no later than October 31 of the control period after 
thecontrol period in which a CAIR SO2 opt-in unit enters 
theCAIR SO2 Trading Program under Sec. 97.284(g)and October 
31 of each year thereafter, the permitting authority willallocate CAIR 
SO2 allowances to the CAIR SO2opt-in unit, and 
submit to the Administrator the allocation for thecontrol period that 
includes such submission deadline and in which theunit is a CAIR 
SO2 opt-in unit, in accordance withparagraph (b) or (c) of 
this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR SO2 opt-in unit is to be allocated CAIRSO2 
allowances, the permitting authority will allocate inaccordance with the 
following procedures, if provided in a Stateimplementation plan revision 
submitted in accordance withSec. 51.124(r)(1), (2), or (3) of this 
chapter and approvedby the Administrator:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRSO2 allowance allocation will be the lesser of:
    (i) The CAIR SO2 opt-in unit's baseline heat 
inputdetermined under Sec. 97.284(c); or
    (ii) The CAIR SO2 opt-in unit's heat input, asdetermined 
in accordance with subpart HHH of this part, for the

[[Page 980]]

immediately prior control period, except when the allocation isbeing 
calculated for the control period in which the CAIRSO2 opt-in 
unit enters the CAIR SO2 TradingProgram under Sec. 
97.284(g).
    (2) The SO2 emission rate (in lb/mmBtu) used 
forcalculating CAIR SO2 allowance allocations will be 
thelesser of:
    (i) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 97.284(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period for which CAIR 
SO2allowances are to be allocated.
    (3) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (b)(1) of this section, multiplied 
by theSO2 emission rate under paragraph (b)(2) of this 
section,and divided by 2,000 lb/ton.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit (based on a demonstration of the 
intent torepower stated under Sec. 97.283(a)(5)) providing 
for,allocation to a CAIR SO2 opt-in unit of 
CAIRSO2 allowances under this paragraph (subject to 
theconditions in Sec. Sec. 97.284(h) and 97.286(g)), thepermitting 
authority will allocate to the CAIR SO2 opt-inunit as 
follows, if provided in a State implementation plan revisionsubmitted in 
accordance with Sec. 51.124(r)(1), (2), or (3)of this chapter and 
approved by the Administrator:
    (1) For each control period in 2010 through 2014 for which theCAIR 
SO2 opt-in unit is to be allocated CAIRSO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRSO2 allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used 
forcalculating CAIR SO2 allowance allocations will be 
thelesser of:
    (A) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 97.284(d); or
    (B) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period in which the CAIR SO2 opt-
in unit enters the CAIR SO2 Trading Program underSec. 
97.284(g).
    (iii) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (c)(1)(i) of this section, 
multiplied bythe SO2 emission rate under paragraph (c)(1)(ii) 
of thissection, and divided by 2,000 lb/ton.
    (2) For each control period in 2015 and thereafter for which theCAIR 
SO2 opt-in unit is to be allocated CAIRSO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRSO2 allowance allocations will be determined as 
describedin paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used 
forcalculating the CAIR SO2 allowance allocation will be 
thelesser of:
    (A) The CAIR SO2 opt-in unit's baselineSO2 
emissions rate (in lb/mmBtu) determined underSec. 97.284(d) multiplied 
by 10 percent; or
    (B) The most stringent State or Federal SO2 
emissionslimitation applicable to the CAIR SO2 opt-in unit at 
anytime during the control period for which CAIR 
SO2allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR 
SO2allowances to the CAIR SO2 opt-in unit with a 
tonnageequivalent equal to, or less than by the smallest possible 
amount, theheat input under paragraph (c)(2)(i) of this section, 
multiplied bythe SO2 emission rate under paragraph (c)(2)(ii) 
of thissection, and divided by 2,000 lb/ton.
    (d) Recordation. If provided in a State implementation planrevision 
submitted in accordance with Sec. 51.124(r)(1),(2), or (3) of this 
chapter and approved by the Administrator:
    (1) The Administrator will record, in the compliance account ofthe 
source that includes the CAIR SO2 opt-in unit,

[[Page 981]]

the CAIR SO2 allowances allocated by the permittingauthority 
to the CAIR SO2 opt-in unit under paragraph (a)(1) of this 
section.
    (2) By December 1 of the control period in which a 
CAIRSO2 opt-in unit enters the CAIR SO2 
TradingProgram under Sec. 97.284(g) and December 1 of each 
yearthereafter, the Administrator will record, in the compliance 
accountof the source that includes the CAIR SO2 opt-in unit, 
theCAIR SO2 allowances allocated by the permitting 
authorityto the CAIR SO2 opt-in unit under paragraph (a)(2) 
of thissection.



  Sec. Appendix A to Subpart III ofPart 97--States With Approved State 
Implementation PlanRevisions Concerning CAIR SO2 Opt-In Units


    1. The following States have State Implementation Plan 
revisionsunder Sec. 51.124(r) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRSO2 opt-in units under subpart III of this part 
andallocation of CAIR SO2 allowances to such units underSec. 
97.288(b):
    Indiana
     North Carolina
     Ohio
     South Carolina
     Tennessee
    2. The following States have State Implementation Plan 
revisionsunder Sec. 51.124(r) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRSO2 opt-in units under subpart III of this part 
andallocation of CAIR SO2 allowances to such units underSec. 
97.288(c):
    Indiana
     North Carolina
     Ohio
     South Carolina
     Tennessee

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 46394, Aug.20, 2007; 72 
FR 56920, Oct. 5, 2007; 72 FR 57215, Oct. 9, 2007; 72 FR59487, Oct. 22, 
2007; 73 FR 6041, Feb. 1, 2008]



  Subpart AAAA_CAIR NOX Ozone Season TradingProgram General Provisions



Sec. 97.301  Purpose.

    This subpart and subparts BBBB through IIII set forth the 
generalprovisions and the designated representative, permitting, 
allowance,monitoring, and opt-in provisions for the Federal Clean Air 
InterstateRule (CAIR) NOX Ozone Season Trading Program, 
undersection 110 of the Clean Air Act and Sec. 52.35 of thischapter, as 
a means of mitigating interstate transport of ozone andnitrogen oxides.



Sec. 97.302  Definitions.

    The terms used in this subpart and subparts BBBB through IIIIshall 
have the meanings set forth in this section asfollows:
    Account number means the identification number givenby the 
Administrator to each CAIR NOX Ozone SeasonAllowance Tracking 
System account.
    Acid Rain emissions limitation means a limitation onemissions of 
sulfur dioxide or nitrogen oxides under the Acid RainProgram.
    Acid Rain Program means a multi-state sulfur dioxide andnitrogen 
oxides air pollution control and emission reduction programestablished 
by the Administrator under title IV of the CAA and parts72 through 78 of 
this chapter.
    Administrator means the Administrator of the United 
StatesEnvironmental Protection Agency or the Administrator's duly 
authorizedrepresentative.
    Allocate or allocation means, with regard to CAIRNOX 
Ozone Season allowances, the determination by apermitting authority or 
the Administrator of the amount of such CAIRNOX Ozone Season 
allowances to be initially credited to aCAIR NOX Ozone Season 
unit, a new unit set-aside, or otherentity.
    Allowance transfer deadline means, for a control period,midnight of 
November 30 (if it is a business day), or midnight of thefirst business 
day thereafter (if November 30 is not a business day),immediately 
following the control period and is the deadline by whicha CAIR 
NOX Ozone Season allowance transfer must besubmitted for 
recordation in a CAIR NOX Ozone Seasonsource's compliance 
account in order to be used to meet the source'sCAIR NOX 
Ozone Season emissions limitation for suchcontrol period in accordance 
with Sec. 97.354.
    Alternate CAIR designated representative means, for a 
CAIRNOX Ozone Season source and each CAIR NOXOzone 
Season unit at the source, the natural person who is authorizedby the 
owners

[[Page 982]]

and operators of the source and all such units atthe source, in 
accordance with subparts BBBB and IIII of this part, toact on behalf of 
the CAIR designated representative in matterspertaining to the CAIR 
NOX Ozone Season Trading Program.If the CAIR NOX 
Ozone Season source is also a CAIRNOX source, then this 
natural person shall be the sameperson as the alternate CAIR designated 
representative under the CAIRNOX Annual Trading Program. If 
the CAIR NOXOzone Season source is also a CAIR SO2 
source, then thisnatural person shall be the same person as the 
alternate CAIRdesignated representative under the CAIR SO2 
TradingProgram. If the CAIR NOX Ozone Season source is 
alsosubject to the Acid Rain Program, then this natural person shall 
bethe same person as the alternate designated representative under 
theAcid Rain Program. If the CAIR NOX Ozone Season source 
isalso subject to the Hg Budget Trading Program, then this naturalperson 
shall be the same person as the alternate Hg designatedrepresentative 
under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHSmeans that 
component of the continuous emission monitoring system, orother 
emissions monitoring system approved for use under subpart HHHHof this 
part, designed to interpret and convert individual outputsignals from 
pollutant concentration monitors, flow monitors, diluentgas monitors, 
and other component parts of the monitoring system toproduce a 
continuous record of the measured parameters in themeasurement units 
required by subpart HHHH of thispart.
    Biomass means--
    (1) Any organic material grown for the purpose of being convertedto 
energy;
    (2) Any organic byproduct of agriculture that can be convertedinto 
energy; or
    (3) Any material that can be converted into energy and 
isnonmerchantable for other purposes, that is segregated from 
othernonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill 
residues,precommercial thinnings, slash, brush, or byproduct from 
conversion oftrees to merchantable material; or
    (ii) A wood material, including pallets, crates, 
dunnage,manufacturing and construction materials (other than pressure-
treated,chemically-treated, or painted wood products), and landscape or 
right-of-way tree trimmings.
    Boiler means an enclosed fossil-or other-fuel-firedcombustion device 
used to produce heat and to transfer heat torecirculating water, steam, 
or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unitin which 
the energy input to the unit is first used to produce usefulthermal 
energy and at least some of the reject heat from the usefulthermal 
energy application or process is then used for electricityproduction.
    CAIR authorized account representative means, with regard toa 
general account, a responsible natural person who is authorized, 
inaccordance with subparts BBBB, FFFF, and IIII of this part, totransfer 
and otherwise dispose of CAIR NOX Ozone Seasonallowances held 
in the general account and, with regard to acompliance account, the CAIR 
designated representative of the source.
    CAIR designated representative means, for a CAIRNOX Ozone 
Season source and each CAIR NOXOzone Season unit at the 
source, the natural person who is authorizedby the owners and operators 
of the source and all such units at thesource, in accordance with 
subparts BBBB and IIII of this part, torepresent and legally bind each 
owner and operator in matterspertaining to the CAIR NOX Ozone 
Season Trading Program.If the CAIR NOX Ozone Season source is 
also a CAIRNOX source, then this natural person shall be the 
sameperson as the CAIR designated representative under the 
CAIRNOX Annual Trading Program. If the CAIR 
NOXOzone Season source is also a CAIR SO2 source, 
then thisnatural person shall be the same person as the CAIR 
designatedrepresentative under the CAIR SO2 Trading Program. 
If theCAIR NOX Ozone Season source is also subject to the 
AcidRain Program, then this natural person shall be the same person as 
thedesignated representative under the Acid Rain Program. If the CAIR

[[Page 983]]

NOX Ozone Season source is also subject to the HgBudget 
Trading Program, then this natural person shall be the sameperson as the 
Hg designated representative under the Hg Budget TradingProgram.
    CAIR NOX Annual Trading Program means amulti-state nitrogen oxides 
air pollution control and emissionreduction program established by the 
Administrator in accordance withsubparts AA through II of this part 
andSec. Sec. 51.123(p) and 52.35 of this chapter or approvedand 
administered by the Administrator in accordance with subparts AAthrough 
II of part 96 of this chapter and Sec. 51.123(o)(1)or (2) of this 
chapter, as a means of mitigating interstate transportof fine 
particulates and nitrogen oxides.
    CAIR NOX Ozone Season allowance means alimited authorization issued 
by a permitting authority or theAdministrator under subpart EEEE of this 
part, Sec. 97.388,or provisions of a State implementation plan that are 
approved underSec. 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), 
or(ee) of this chapter, to emit one ton of nitrogen oxides during 
acontrol period of the specified calendar year for which 
theauthorization is allocated or of any calendar year thereafter 
underthe CAIR NOX Ozone Season Trading Program or a 
limitedauthorization issued by a permitting authority for a control 
periodduring 2003 through 2008 under the NOX Budget 
TradingProgram in accordance with Sec. 51.121(p) of this chapter toemit 
one ton of nitrogen oxides during a control period, provided thatthe 
provision in Sec. 51.121(b)(2)(ii)(E) of this chaptershall not be used 
in applying this definition and the limitedauthorization shall not have 
been used to meet the allowance-holdingrequirement under the 
NOX Budget Trading Program. Anauthorization to emit nitrogen 
oxides that is not issued under subpartEEEE of this part, Sec. 97.388, 
or provisions of a Stateimplementation plan that are approved under 
Sec. 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee) of this 
chapter orunder the NOX Budget Trading Program as described 
in theprior sentence shall not be a CAIR NOX Ozone 
Seasonallowance.
    CAIR NOX Ozone Season allowance deductionor deduct CAIR NOX Ozone 
Season allowancesmeans the permanent withdrawal of CAIR NOX 
Ozone Seasonallowances by the Administrator from a compliance account, 
e.g.,in order to account for a specified number of tons of total 
nitrogenoxides emissions from all CAIR NOX Ozone Season units 
at aCAIR NOX Ozone Season source for a control 
period,determined in accordance with subpart HHHH of this part, or to 
accountfor excess emissions.
    CAIR NOX Ozone Season Allowance TrackingSystem means the system by 
which the Administrator recordsallocations, deductions, and transfers of 
CAIR NOX OzoneSeason allowances under the CAIR NOX 
Ozone Season TradingProgram. Such allowances will be allocated, held, 
deducted, ortransferred only as whole allowances.
    CAIR NOX Ozone Season Allowance TrackingSystem account means an 
account in the CAIR NOX OzoneSeason Allowance Tracking System 
established by the Administrator forpurposes of recording the 
allocation, holding, transferring, ordeducting of CAIR NOX 
Ozone Season allowances.
    CAIR NOX Ozone Season allowances held orhold CAIR NOX 
Ozone Season allowances meansthe CAIR NOX Ozone Season 
allowances recorded by theAdministrator, or submitted to the 
Administrator for recordation, inaccordance with subparts FFFF, GGGG, 
and IIII of this part, in a CAIRNOX Ozone Season Allowance 
Tracking System account.
    CAIR NOX Ozone Season emissions limitationmeans, for a CAIR 
NOX Ozone Season source, the tonnageequivalent, in 
NOX emissions in a control period, of theCAIR NOX 
Ozone Season allowances available for deductionfor the source under 
Sec. 97.354(a) and (b) for the controlperiod.
    CAIR NOX Ozone Season source means asource that includes one or more 
CAIR NOX Ozone Seasonunits.
    CAIR NOX Ozone Season Trading Programmeans a multi-state nitrogen 
oxides air pollution control and emissionreduction program established 
by the Administrator in accordance withsubparts AAAA through IIII of 
part 96 of this part andSec. Sec. 51.123(ee) and 52.35 of

[[Page 984]]

this chapter orapproved and administered by the Administrator in 
accordance withunder subparts AAAA through IIII and Sec. 51.123(aa)(1) 
or(2) (and (bb)(1)), (bb)(2), or (dd) of this chapter, as a means 
ofmitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX Ozone Season unit means a unitthat is subject to the CAIR 
NOX Ozone Season TradingProgram under Sec. 97.304 and, 
except for purposes ofSec. 97.305 and subpart EEEE of this part, a 
CAIRNOX Ozone Season opt-in unit under subpart IIII of 
thispart.
    CAIR NOX source means a source that issubject to the CAIR 
NOX Annual Trading Program.
    CAIR permit means the legally binding and federallyenforceable 
written document, or portion of such document, issued bythe permitting 
authority under subpart CCCC of this part, includingany permit 
revisions, specifying the CAIR NOX Ozone SeasonTrading 
Program requirements applicable to a CAIR NOXOzone Season 
source, to each CAIR NOX Ozone Season unit atthe source, and 
to the owners and operators and the CAIR designatedrepresentative of the 
source and each such unit.
    CAIR SO2 source means a source that issubject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reductionprogram established by the 
Administrator in accordance with subpartsAAA through III of this part 
and Sec. Sec. 51.124(r) and52.36 of this chapter or approved and 
administered by theAdministrator in accordance with subparts AAA through 
III of part 96of this chapter and Sec. 51.124(o)(1) or (2) of 
thischapter, as a means of mitigating interstate transport of 
fineparticulates and sulfur dioxide.
    Certifying official means:
    (1) For a corporation, a president, secretary, treasurer, or vice-
president or the corporation in charge of a principal businessfunction 
or any other person who performs similar policy or decision-making 
functions for the corporation;
    (2) For a partnership or sole proprietorship, a general partner 
orthe proprietor respectively; or
    (3) For a local government entity or State, Federal, or otherpublic 
agency, a principal executive officer or ranking electedofficial.
    Clean Air Act or CAA means the Clean Air Act, 42U.S.C. 7401, et seq.
    Coal means any solid fuel classified as anthracite,bituminous, 
subbituminous, or lignite.
    Coal-derived fuel means any fuel (whether in a solid,liquid, or 
gaseous state) produced by the mechanical, thermal, orchemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EEEE of this part, combustingany 
amount of coal or coal-derived fuel, alone or in combination withany 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EEEE of this part, combusting anyamount 
of coal or coal-derived fuel, alone or in combination with anyamount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-firedboiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and usefulthermal 
energy for industrial, commercial, heating, or coolingpurposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date 
theunit first produces electricity and during any calendar year after 
thecalendar year in which the unit first produces electricity--
    (i) For a topping-cycle cogeneration unit,
    (A) Useful thermal energy not less than 5 percent of total 
energyoutput; and
    (B) Useful power that, when added to one-half of useful 
thermalenergy produced, is not less then 42.5 percent of total energy 
input,if useful thermal energy produced is 15 percent or more of 
totalenergy output, or not less than 45 percent of total energy input, 
ifuseful thermal energy produced is less than 15 percent of total 
energyoutput.

[[Page 985]]

    (ii) For a bottoming-cycle cogeneration unit, useful powernot less 
than 45 percent of total energy input;
    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energyinput 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and 
aturbine and in which the flue gas resulting from the combustion offuel 
in the combustor passes through the turbine, rotating theturbine; and
    (2) If the enclosed device under paragraph (1) of this definitionis 
combined cycle, any associated duct burner, heat recovery 
steamgenerator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated mediumused 
to generate electricity for sale or use, including testgeneration, 
except as provided in Sec. 97.305 andSec. 97.384(h).
    (i) For a unit that is a CAIR NOX Ozone Season unitunder 
Sec. 97.304 on the later of November 15, 1990 or thedate the unit 
commences commercial operation as defined in paragraph(1) of this 
definition and that subsequently undergoes a physicalchange (other than 
replacement of the unit by a unit at the samesource), such date shall 
remain the date of commencement of commercialoperation of the unit, 
which shall continue to be treated as the sameunit.
    (ii) For a unit that is a CAIR NOX Ozone Season unitunder 
Sec. 97.304 on the later of November 15, 1990 or thedate the unit 
commences commercial operation as defined in paragraph(1) of this 
definition and that is subsequently replaced by a unit atthe same source 
(e.g., repowered), such date shall remain thereplaced unit's date of 
commencement of commercial operation, and thereplacement unit shall be 
treated as a separate unit with a separatedate for commencement of 
commercial operation as defined in paragraph(1), (2), or (3) of this 
definition as appropriate.
    (2) Notwithstanding paragraph (1) of this definition and except 
asprovided in Sec. 97.305, for a unit that is not a CAIRNOX 
Ozone Season unit under Sec. 97.304 on thelater of November 15, 1990 or 
the date the unit commences commercialoperation as defined in paragraph 
(1) of this definition, the unit'sdate for commencement of commercial 
operation shall be the date onwhich the unit becomes a CAIR 
NOX Ozone Season unit underSec. 97.304.
    (i) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and thatsubsequently 
undergoes a physical change (other than replacement ofthe unit by a unit 
at the same source), such date shall remain thedate of commencement of 
commercial operation of the unit, which shallcontinue to be treated as 
the same unit.
    (ii) For a unit with a date for commencement of commercialoperation 
as defined in paragraph (2) of this definition and that issubsequently 
replaced by a unit at the same source (e.g.,repowered), such date shall 
remain the replaced unit's date ofcommencement of commercial operation, 
and the replacement unit shallbe treated as a separate unit with a 
separate date for commencement ofcommercial operation as defined in 
paragraph (1), (2), or (3) of thisdefinition as appropriate.
    (3) Notwithstanding paragraphs (1) and (2) of this definition, fora 
unit not serving a generator producing electricity for sale, theunit's 
date of commencement of operation shall also be the unit's dateof 
commencement of commercial operation.
    Commence operation means:
    (1) To have begun any mechanical, chemical, or electronic 
process,including, with regard to a unit, start-up of a unit's 
combustionchamber, except as provided in Sec. 97.384(h).
    (i) For a unit that undergoes a physical change (other 
thanreplacement of the unit by a unit at the same source) after the 
datethe unit commences operation as defined in paragraph (1) of 
thisdefinition, such date shall remain the date of commencement 
ofoperation of the unit, which shall continue to be treated as the 
sameunit.
    (ii) For a unit that is replaced by a unit at the same source(e.g., 
repowered) after the date the unit commences operation asdefined in 
paragraph (1) of this definition, such date

[[Page 986]]

shallremain the replaced unit's date of commencement of operation, and 
thereplacement unit shall be treated as a separate unit with a 
separatedate for commencement of operation as defined in paragraph (1) 
or (2)of this definition as appropriate, except as provided inSec. 
97.384(h).
    (2) Notwithstanding paragraph (1) of this definition and solelyfor 
purposes of subpart HHHH of this part, for a unit that is not aCAIR 
NOX Ozone Season unit under Sec. 97.304(d)on the later of 
November 15, 1990 or the date the unit commencesoperation as defined in 
paragraph (1) of this definition andsubsequently becomes such a CAIR 
NOX Ozone Season unit,the unit's date for commencement of 
operation shall be the date onwhich the unit becomes a CAIR 
NOX Ozone Season unit underSec. 97.304(d).
    (i) For a unit with a date for commencement of operation asdefined 
in paragraph (2) of this definition and that subsequentlyundergoes a 
physical change (other than replacement of the unit by aunit at the same 
source), such date shall remain the date ofcommencement of operation of 
the unit, which shall continue to betreated as the same unit.
    (ii) For a unit with a date for commencement of operation asdefined 
in paragraph (2) of this definition and that is subsequentlyreplaced by 
a unit at the same source (e.g., repowered), suchdate shall remain the 
replaced unit's date of commencement ofoperation, and the replacement 
unit shall be treated as a separateunit with a separate date for 
commencement of operation as defined inparagraph (1) or (2) of this 
definition as appropriate.
    Common stack means a single flue through which emissionsfrom 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX Ozone SeasonAllowance 
Tracking System account, established by the Administratorfor a CAIR 
NOX Ozone Season source under subpart FFFF orIIII of this 
part, in which any CAIR NOX Ozone Seasonallowance allocations 
for the CAIR NOX Ozone Season unitsat the source are 
initially recorded and in which are held any CAIRNOX Ozone 
Season allowances available for use for acontrol period in order to meet 
the source's CAIR NOXOzone Season emissions limitation in 
accordance withSec. 97.354.
    Continuous emission monitoring system or CEMS meansthe equipment 
required under subpart HHHH of this part to sample,analyze, measure, and 
provide, by means of readings recorded at leastonce every 15 minutes 
(using an automated data acquisition andhandling system (DAHS)), a 
permanent record of nitrogen oxidesemissions, stack gas volumetric flow 
rate, stack gas moisture content,and oxygen or carbon dioxide 
concentration (as applicable), in amanner consistent with part 75 of 
this chapter. The following systemsare the principal types of continuous 
emission monitoring systemsrequired under subpart HHHH of this part:
    (1) A flow monitoring system, consisting of a stack flow ratemonitor 
and an automated data acquisition and handling system andproviding a 
permanent, continuous record of stack gas volumetric flowrate, in 
standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consistingof 
a NOX pollutant concentration monitor and an automateddata 
acquisition and handling system and providing a permanent,continuous 
record of NOX emissions, in parts per million(ppm);
    (3) A nitrogen oxides emission rate (or NOX-
diluent)monitoring system, consisting of a NOX 
pollutantconcentration monitor, a diluent gas (CO2 
orO2) monitor, and an automated data acquisition andhandling 
system and providing a permanent, continuous record ofNOX 
concentration, in parts per million (ppm), diluent gasconcentration, in 
percent CO2 or O2, andNOX emission 
rate, in pounds per million British thermalunits (lb/mmBtu);
    (4) A moisture monitoring system, as defined inSec. 75.11(b)(2) of 
this chapter and providing a permanent,continuous record of the stack 
gas moisture content, in percentH2O;
    (5) A carbon dioxide monitoring system, consisting of 
aCO2 pollutant concentration monitor (or an oxygen 
monitorplus suitable mathematical equations from which the 
CO2concentration is derived) and an automated data 
acquisition andhandling system and providing a permanent, continuous

[[Page 987]]

record ofCO2 emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an 
O2concentration monitor and an automated data acquisition and 
handlingsystem and providing a permanent, continuous record of 
O2,in percent O2.
    Control period or ozone season means the periodbeginning May 1 of a 
calendar year, except as provided inSec. 97.306(c)(2) and ending on 
September 30 of the sameyear, inclusive.
    Emissions means air pollutants exhausted from a unit orsource into 
the atmosphere, as measured, recorded, and reported to theAdministrator 
by the CAIR designated representative and as determinedby the 
Administrator in accordance with subpart HHHH of this part.
    Excess emissions means any ton of nitrogen oxides emitted bythe CAIR 
NOX Ozone Season units at a CAIR NOXOzone Season 
source during a control period that exceeds the CAIRNOX Ozone 
Season emissions limitation for the source.
    Fossil fuel means natural gas, petroleum, coal, or any formof solid, 
liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combustingany amount 
of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including dieselfuel or 
petroleum derivatives such as oil tar) and any recycled orblended 
petroleum products or petroleum by-products used as a fuelwhether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Ozone SeasonAllowance 
Tracking System account, established under subpart FFFF ofthis part, 
that is not a compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogenerationunit, 
electricity made available for use, including any suchelectricity used 
in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Heat input means, with regard to a specified period of time,the 
product (in mmBtu/time) of the gross calorific value of the fuel(in Btu/
lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuelfeed rate 
into a combustion device (in lb of fuel/time), as measured,recorded, and 
reported to the Administrator by the CAIR designatedrepresentative and 
determined by the Administrator in accordance withsubpart HHHH of this 
part and excluding the heat derived frompreheated combustion air, 
recirculated flue gases, or exhaust fromother sources.
    Heat input rate means the amount of heat input (in mmBtu)divided by 
unit operating time (in hr) or, with regard to a specificfuel, the 
amount of heat input attributed to the fuel (in mmBtu)divided by the 
unit operating time (in hr) during which the unitcombusts the fuel.
    Hg Budget Trading Program means a multi-state Hg airpollution 
control and emission reduction program approved andadministered by the 
Administrator in accordance subpart HHHH of part60 of this chapter and 
Sec. 60.24(h)(6), or established bythe Administrator under section 111 
of the Clean Air Act, as a meansof reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means aunit 
participation power sales agreement under which a utility orindustrial 
customer reserves, or is entitled to receive, a specifiedamount or 
percentage of nameplate capacity and associated energygenerated by any 
specified unit and pays its proportional amount ofsuch unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, 
includingcontracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of theeconomic 
useful life of the unit determined as of the time the unit isbuilt, with 
option rights to purchase or release some portion of thenameplate 
capacity and associated energy generated by the unit at theend of the 
period.
    Maximum design heat input means the maximum amount of fuelper hour 
(in

[[Page 988]]

Btu/hr) that a unit is capable of combusting on asteady state basis as 
of the initial installation of the unit asspecified by the manufacturer 
of the unit.
    Monitoring system means any monitoring system that meets 
therequirements of subpart HHHH of this part, including a 
continuousemissions monitoring system, an alternative monitoring system, 
or anexcepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissionslimitation means, with 
regard to a unit, the lowest NOXemissions limitation (in 
terms of lb/mmBtu) that is applicable to theunit under State or Federal 
law, regardless of the averaging period towhich the emissions limitation 
applies.
    Nameplate capacity means, starting from the initialinstallation of a 
generator, the maximum electrical generating output(in MWe) that the 
generator is capable of producing on a steady statebasis and during 
continuous operation (when not restricted by seasonalor other deratings) 
as of such installation as specified by themanufacturer of the generator 
or, starting from the completion of anysubsequent physical change in the 
generator resulting in an increasein the maximum electrical generating 
output (in MWe) that thegenerator is capable of producing on a steady 
state basis and duringcontinuous operation (when not restricted by 
seasonal or otherderatings), such increased maximum amount as of such 
completion asspecified by the person conducting the physical change.
    Oil-fired means, for purposes of subpart EEEE of this 
part,combusting fuel oil for more than 15.0 percent of the annual 
heatinput in a specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, orsupervises a 
CAIR NOX Ozone Season unit or a CAIRNOX Ozone 
Season source and shall include, but not belimited to, any holding 
company, utility system, or plant manager ofsuch a unit or source.
    Owner means any of the following persons:
    (1) With regard to a CAIR NOX Ozone Season source or 
aCAIR NOX Ozone Season unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in 
aCAIR NOX Ozone Season unit at the source or the 
CAIRNOX Ozone Season unit;
    (ii) Any holder of a leasehold interest in a CAIR 
NOXOzone Season unit at the source or the CAIR NOX 
OzoneSeason unit; or
    (iii) Any purchaser of power from a CAIR NOX OzoneSeason 
unit at the source or the CAIR NOX Ozone Seasonunit under a 
life-of-the-unit, firm power contractual arrangement;provided that, 
unless expressly provided for in a leasehold agreement,owner shall not 
include a passive lessor, or a person who has anequitable interest 
through such lessor, whose rental payments are notbased (either directly 
or indirectly) on the revenues or income fromsuch CAIR NOX 
Ozone Season unit; or
    (2) With regard to any general account, any person who has 
anownership interest with respect to the CAIR NOX OzoneSeason 
allowances held in the general account and who is subject tothe binding 
agreement for the CAIR authorized account representativeto represent the 
person's ownership interest with respect to CAIRNOX Ozone 
Season allowances.
    Permitting authority means the State air pollution controlagency, 
local agency, other State agency, or other agency authorizedby the 
Administrator to issue or revise permits to meet therequirements of the 
CAIR NOX Ozone Season Trading Programor, if no such agency 
has been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of aunit(s 
maximum design heat input, divided by 3,413 Btu/kWh, divided by1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to thepermitting 
authority or the Administrator, to come into possession ofa document, 
information, or correspondence (whether sent in hard copyor by 
authorized electronic transmission), as indicated in an officiallog, or 
by a notation made on the document, information, orcorrespondence,

[[Page 989]]

by the permitting authority or the Administratorin the regular course of 
business.
    Recordation, record, or recorded means, withregard to CAIR 
NOX Ozone Season allowances, the movementof CAIR 
NOX Ozone Season allowances by the Administratorinto or 
between CAIR NOX Ozone Season Allowance TrackingSystem 
accounts, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of samplingand 
analyzing for an air pollutant as specified inSec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, withregard to a unit, the 
demolishing of a unit, or the permanent shutdownand permanent disabling 
of a unit, and the construction of anotherunit (the replacement unit) to 
be used instead of the demolished orshutdown unit (the replaced unit).
    Repowered means, with regard to a unit, replacement of acoal-fired 
boiler with one of the following coal-fired technologies atthe same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;
    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with 
theSecretary of Energy, a derivative of one or more of the 
technologiesunder paragraphs (1) through (5) of this definition and any 
othercoal-fired technology capable of controlling multiple 
combustionemissions simultaneously with improved boiler or generation 
efficiencyand with significantly greater waste reduction relative to 
theperformance of technology in widespread commercial use as of 
January1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject 
heatfrom electricity production in a useful thermal energy application 
orprocess; or
    (2) For a bottoming-cycle cogeneration unit, the use of rejectheat 
from useful thermal energy application or process in 
electricityproduction.
    Serial number means, for a CAIR NOX Ozone 
Seasonallowance, the unique identification number assigned to each 
CAIRNOX Ozone Season allowance by the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbinethat is a 
``solid waste incineration unit'' as defined insection 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installationslocated in 
one or more contiguous or adjacent properties under commoncontrol of the 
same person or persons. For purposes of section 502(c)of the Clean Air 
Act, a ``source,'' including a``source'' with multiple units, shall be 
considered asingle ``facility.''
    State means one of the States or the District of Columbiathat is 
subject to the CAIR NOX Ozone Season TradingProgram pursuant 
to Sec. 52.35 of this chapter.
    Submit or serve means to send or transmit a document,information, or 
correspondence to the person specified in accordancewith the applicable 
regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and 
delivery.Compliance with any ``submission'' or``service'' deadline shall 
be determined by the date ofdispatch, transmission, or mailing and not 
the date of receipt.
    Title V operating permit means a permit issued under title Vof the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulationsthat the 
Administrator has approved or issued as meeting therequirements of title 
V of the Clean Air Act and part 70 or 71 of thischapter.
    Ton means 2,000 pounds. For the purpose of determiningcompliance 
with the CAIR NOX Ozone Season emissionslimitation, total 
tons of nitrogen oxides emissions for a controlperiod shall be 
calculated as the sum of all recorded hourly emissions(or the mass

[[Page 990]]

equivalent of the recorded hourly emission rates) inaccordance with 
subpart HHHH of this part, but with any remainingfraction of a ton equal 
to or greater than 0.50 tons deemed to equalone ton and any remaining 
fraction of a ton less than 0.50 tons deemedto equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit inwhich 
the energy input to the unit is first used to produce usefulpower, 
including electricity, and at least some of the reject heatfrom the 
electricity production is then used to provide useful thermalenergy.
    Total energy input means, with regard to a cogenerationunit, total 
energy of all forms supplied to the cogeneration unit,excluding energy 
produced by the cogeneration unit itself. Each formof energy supplied 
shall be measured by the lower heating value ofthat form of energy 
calculated as follows:

LHV = HHV-10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,
HHV = higher heating value of fuel in Btu/lb,
W = Weight % of moisture in fuel, and
H = Weight % of hydrogen in fuel.

    Total energy output means, with regard to a cogenerationunit, the 
sum of useful power and useful thermal energy produced bythe 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler orcombustion 
turbine or other stationary, fossil-fuel-fired combustiondevice.
    Unit operating day means a calendar day in which a unitcombusts any 
fuel.
    Unit operating hour or hour of unit operation means anhour in which 
a unit combusts any fuel.
    Useful power means, with regard to a cogeneration unit,electricity 
or mechanical energy made available for use, excluding anysuch energy 
used in the power production process (which processincludes, but is not 
limited to, any on-site processing or treatmentof fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogenerationunit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not 
apower production process), excluding any heat contained in 
condensatereturn or makeup water;
    (2) Used in a heating application (e.g., space heating ordomestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermalenergy used by 
an absorption chiller).
    Utility power distribution system means the portion of anelectricity 
grid owned or operated by a utility and dedicated todelivering 
electricity to customers.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006; 72 
FR 59207, Oct. 19, 2007]



Sec. 97.303  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart 
andsubparts BBBB through IIII are defined as follows:

Btu--British thermal unit.
CO2--carbon dioxide.
H2O--water.
Hg--mercury.
hr--hour.
kW--kilowatt electrical.
kWh--kilowatt hour.
lb--pound.
mmBtu--million Btu.
MWe--megawatt electrical.
MWh--megawatt hour.
NOX--nitrogen oxides.
O2--oxygen.
ppm--parts per million.
scfh--standard cubic feet per hour.
SO2--sulfur dioxide.
yr--year.



Sec. 97.304  Applicability.

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR NOXOzone 
Season units, and any source that includes one or more suchunits shall 
be a CAIR NOX Ozone Season source, subject tothe requirements 
of this subpart and subparts BBBB through HHHH ofthis part: any 
stationary, fossil-fuel-fired boiler or stationary,fossil-fuel-fired 
combustion turbine serving at any time, since thelater of November 15, 
1990 or the start-up of the unit(s combustionchamber, a generator with 
nameplate capacity of more than 25 MWeproducing electricity for sale.

[[Page 991]]

    (2) If a stationary boiler or stationary combustion turbinethat, 
under paragraph (a)(1) of this section, is not a CAIRNOX 
Ozone Season unit begins to combust fossil fuel or toserve a generator 
with nameplate capacity of more than 25 MWeproducing electricity for 
sale, the unit shall become a CAIRNOX Ozone Season unit as 
provided in paragraph (a)(1) ofthis section on the first date on which 
it both combusts fossil fueland serves such generator.
    (b) The units in a State that meet the requirements set forth 
inparagraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shallnot 
be CAIR NOX Ozone Season units:
    (1)(i) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month 
periodstarting on the date the unit first produces electricity 
andcontinuing to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990or 
the start-up of the unit's combustion chamber, a generator withnameplate 
capacity of more than 25 MWe supplying in any calendar yearmore than 
one-third of the unit(s potential electric output capacityor 219,000 
MWh, whichever is greater, to any utility powerdistribution system for 
sale.
    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricityand meets 
the requirements of paragraphs (b)(1)(i) of this section forat least one 
calendar year, but subsequently no longer meets all suchrequirements, 
the unit shall become a CAIR NOX OzoneSeason unit starting on 
the earlier of January 1 after the firstcalendar year during which the 
unit first no longer qualifies as acogeneration unit or January 1 after 
the first calendar year duringwhich the unit no longer meets the 
requirements of paragraph (b)(1)(i)(B) of this section.
    (2)(i) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section commencing operationbefore 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
for1985-1987 exceeding 80 percent (on a Btu basis) and an averageannual 
fuel consumption of non-fossil fuel for any 3 consecutivecalendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX Ozone Season unitunder 
paragraph (a)(1) or (2) of this section commencing operation onor after 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel 
forthe first 3 calendar years of operation exceeding 80 percent (on a 
Btubasis) and an average annual fuel consumption of non-fossil fuel 
forany 3 consecutive calendar years after 1990 exceeding 80 percent (on 
aBtu basis).
    (iii) If a unit qualifies as a solid waste incineration unit 
andmeets the requirements of paragraph (b)(2)(i) or (ii) of this 
sectionfor at least 3 consecutive calendar years, but subsequently no 
longermeets all such requirements, the unit shall become a 
CAIRNOX Ozone Season unit starting on the earlier of January 
1after the first calendar year during which the unit first no 
longerqualifies as a solid waste incineration unit or January 1 after 
thefirst 3 consecutive calendar years after 1990 for which the unit 
hasan average annual fuel consumption of fossil fuel of 20 percent 
ormore.
    (c) A certifying official of an owner or operator of any unit 
maypetition the Administrator at any time for a determination 
concerningthe applicability, under paragraphs (a) and (b) of this 
section, ofthe CAIR NOX Ozone Season Trading Program to the 
unit.
    (1) Petition content. The petition shall be in writing andinclude 
the identification of the unit and the relevant facts aboutthe unit. The 
petition and any other documents provided to theAdministrator in 
connection with the petition shall include thefollowing certification 
statement, signed by the certifying official:``I am authorized to make 
this submission on behalf of theowners and operators of the unit for 
which the submission is made. Icertify under penalty of law that I have 
personally examined, and amfamiliar with, the statements and information

[[Page 992]]

submitted in thisdocument and all its attachments. Based on my inquiry 
of thoseindividuals with primary responsibility for obtaining the 
information,I certify that the statements and information are to the 
best of myknowledge and belief true, accurate, and complete. I am aware 
thatthere are significant penalties for submitting false statements 
andinformation or omitting required statements and information, 
includingthe possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documentsprovided in 
connection with the petition shall be submitted to theDirector of the 
Clean Air Markets Division (or its successor), U.S.Environmental 
Protection Agency, who will act on the petition as theAdministrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a writtenresponse to the 
petition and may request supplemental informationrelevant to such 
petition. The Administrator's determinationconcerning the applicability, 
under paragraphs (a) and (b) of thissection, of the CAIR NOX 
Ozone Season Trading Program tothe unit shall be binding on the 
permitting authority unless thepetition or other information or 
documents provided in connection withthe petition are found to have 
contained significant, relevant errorsor omissions.
    (d) Notwithstanding paragraphs (a) and (b) of this section, if 
aState submits, and the Administrator approves, a State 
implementationplan revision in accordance with Sec. 51.123(ee)(1) of 
thischapter providing for the inclusion in the CAIR NOX 
OzoneSeason Trading Program of all units that are not otherwise 
CAIRNOX Ozone Season units under paragraphs (a) and (b) 
ofthis section and that are NOX Budget units covered by 
theState's emissions trading program approved underSec. 51.121(p) of 
this chapter, such units shall be CAIRNOX Ozone Season units 
as of the first date that they areNOX Budget units under the 
NOX Budget TradingProgram under Sec. 51.121(p) of this 
chapter.



Sec. 97.305  Retired unit exemption.

    (a)(1) Any CAIR NOX Ozone Season unit that ispermanently 
retired and is not a CAIR NOX Ozone Seasonopt-in unit under 
subpart IIII of this part shall be exempt from theCAIR NOX 
Ozone Season Trading Program, except for theprovisions of this section, 
Sec. Sec. 97.302, 97.303,97.304, 97.306(c)(4) through (7), 97.307, 
97.308, and subparts BBBBand EEEE through GGGG of this part.
    (2) The exemption under paragraph (a)(1) of this section shallbecome 
effective the day on which the CAIR NOX OzoneSeason unit is 
permanently retired. Within 30 days of the unit'spermanent retirement, 
the CAIR designated representative shall submita statement to the 
permitting authority otherwise responsible foradministering any CAIR 
permit for the unit and shall submit a copy ofthe statement to the 
Administrator. The statement shall state, in aformat prescribed by the 
permitting authority, that the unit waspermanently retired on a specific 
date and will comply with therequirements of paragraph (b) of this 
section.
    (3) After receipt of the statement under paragraph (a)(2) of 
thissection, the permitting authority will amend any permit under 
subpartCCCC of this part covering the source at which the unit is 
located toadd the provisions and requirements of the exemption under 
paragraphs(a)(1) and (b) of this section.
    (b) Special provisions. (1) A unit exempt under paragraph(a) of this 
section shall not emit any nitrogen oxides, starting onthe date that the 
exemption takes effect.
    (2) The Administrator or the permitting authority will allocateCAIR 
NOX Ozone Season allowances under subpart EEEE ofthis part to 
a unit exempt under paragraph (a) of this section.
    (3) For a period of 5 years from the date the records are 
created,the owners and operators of a unit exempt under paragraph (a) of 
thissection shall retain at the source that includes the unit, 
recordsdemonstrating that the unit is permanently retired. The 5-year 
periodfor keeping records may be extended for cause, at any time before 
theend of the period, in writing by the

[[Page 993]]

permitting authority or theAdministrator. The owners and operators bear 
the burden of proof thatthe unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, theCAIR 
designated representative of a unit exempt under paragraph (a) ofthis 
section shall comply with the requirements of the CAIRNOX 
Ozone Season Trading Program concerning all periodsfor which the 
exemption is not in effect, even if such requirementsarise, or must be 
complied with, after the exemption takes effect.
    (5) A unit exempt under paragraph (a) of this section and locatedat 
a source that is required, or but for this exemption would berequired, 
to have a title V operating permit shall not resumeoperation unless the 
CAIR designated representative of the sourcesubmits a complete CAIR 
permit application under Sec. 97.322for the unit not less than 18 
months (or such lesser time provided bythe permitting authority) before 
the later of January 1, 2009 or thedate on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt 
underparagraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits 
aCAIR permit application for the unit under paragraph (b)(5) of 
thissection;
    (ii) The date on which the CAIR designated representative isrequired 
under paragraph (b)(5) of this section to submit a CAIRpermit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the 
CAIRdesignated representative is not required to submit a CAIR 
permitapplication for the unit.
    (7) For the purpose of applying monitoring, reporting, 
andrecordkeeping requirements under subpart HHHH of this part, a 
unitthat loses its exemption under paragraph (a) of this section shall 
betreated as a unit that commences commercial operation on the firstdate 
on which the unit resumes operation.



Sec. 97.306  Standard requirements.

    (a) Permit requirements. (1) The CAIR designatedrepresentative of 
each CAIR NOX Ozone Season sourcerequired to have a title V 
operating permit and each CAIRNOX Ozone Season unit required 
to have a title V operatingpermit at the source shall:
    (i) Submit to the permitting authority a complete CAIR 
permitapplication under Sec. 97.322 in accordance with thedeadlines 
specified in Sec. 97.321; and
    (ii) Submit in a timely manner any supplemental information thatthe 
permitting authority determines is necessary in order to review aCAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX OzoneSeason 
source required to have a title V operating permit and eachCAIR 
NOX Ozone Season unit required to have a title Voperating 
permit at the source shall have a CAIR permit issued by thepermitting 
authority under subpart CCCC of this part for the sourceand operate the 
source and the unit in compliance with such CAIRpermit.
    (3) Except as provided in subpart IIII of this part, the ownersand 
operators of a CAIR NOX Ozone Season source that isnot 
otherwise required to have a title V operating permit and eachCAIR 
NOX Ozone Season unit that is not otherwise requiredto have a 
title V operating permit are not required to submit a CAIRpermit 
application, and to have a CAIR permit, under subpart CCCC ofthis part 
for such CAIR NOX Ozone Season source and suchCAIR 
NOX Ozone Season unit.
    (b) Monitoring, reporting, and recordkeeping requirements.(1) The 
owners and operators, and the CAIR designated representative,of each 
CAIR NOX Ozone Season source and each CAIRNOX 
Ozone Season unit at the source shall comply with themonitoring, 
reporting, and recordkeeping requirements of subpart HHHHof this part.
    (2) The emissions measurements recorded and reported in 
accordancewith subpart HHHH of this part shall be used to determine 
complianceby each CAIR NOX Ozone Season source with the 
CAIRNOX Ozone Season emissions limitation under paragraph 
(c)of this section.

[[Page 994]]

    (c) Nitrogen oxides ozone season emission requirements.(1) As of the 
allowance transfer deadline for a control period, theowners and 
operators of each CAIR NOX Ozone Season sourceand each CAIR 
NOX Ozone Season unit at the source shallhold, in the 
source's compliance account, CAIR NOX OzoneSeason allowances 
available for compliance deductions for the controlperiod under Sec. 
97.354(a) in an amount not less than thetons of total nitrogen oxides 
emissions for the control period fromall CAIR NOX Ozone 
Season units at the source, asdetermined in accordance with subpart HHHH 
of this part.
    (2) A CAIR NOX Ozone Season unit shall be subject tothe 
requirements under paragraph (c)(1) of this section for thecontrol 
period starting on the later of May 1, 2009 or the deadlinefor meeting 
the unit's monitor certification requirements underSec. 97.370(b)(1), 
(2), (3), or (7) and for each controlperiod thereafter.
    (3) A CAIR NOX Ozone Season allowance shall not 
bededucted, for compliance with the requirements under paragraph 
(c)(1)of this section, for a control period in a calendar year before 
theyear for which the CAIR NOX Ozone Season allowance 
wasallocated.
    (4) CAIR NOX Ozone Season allowances shall be held 
in,deducted from, or transferred into or among CAIR NOX 
OzoneSeason Allowance Tracking System accounts in accordance with 
subpartsEEEE, FFFF, GGGG, and IIII of this part.
    (5) A CAIR NOX Ozone Season allowance is a 
limitedauthorization to emit one ton of nitrogen oxides in accordance 
withthe CAIR NOX Ozone Season Trading Program. No provision 
ofthe CAIR NOX Ozone Season Trading Program, the CAIR 
permitapplication, the CAIR permit, or an exemption underSec. 97.305 
and no provision of law shall be construed tolimit the authority of the 
United States to terminate or limit suchauthorization.
    (6) A CAIR NOX Ozone Season allowance does notconstitute 
a property right.
    (7) Upon recordation by the Administrator under subpart EEEE,FFFF, 
GGGG, or IIII of this part, every allocation, transfer, ordeduction of a 
CAIR NOX Ozone Season allowance to or froma CAIR 
NOX Ozone Season source's compliance account isincorporated 
automatically in any CAIR permit of the source.
    (d) Excess emissions requirements. If a CAIR NOXOzone 
Season source emits nitrogen oxides during any control period inexcess 
of the CAIR NOX Ozone Season emissions limitation,then:
    (1) The owners and operators of the source and each 
CAIRNOX Ozone Season unit at the source shall surrender 
theCAIR NOX Ozone Season allowances required for 
deductionunder Sec. 97.354(d)(1) and pay any fine, penalty, 
orassessment or comply with any other remedy imposed, for the 
sameviolations, under the Clean Air Act or applicable State law; and
    (2) Each ton of such excess emissions and each day of such 
controlperiod shall constitute a separate violation of this subpart, 
theClean Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unlessotherwise 
provided, the owners and operators of the CAIRNOX Ozone 
Season source and each CAIR NOXOzone Season unit at the 
source shall keep on site at the source eachof the following documents 
for a period of 5 years from the date thedocument is created. This 
period may be extended for cause, at anytime before the end of 5 years, 
in writing by the permitting authorityor the Administrator.
    (i) The certificate of representation under Sec. 97.313for the CAIR 
designated representative for the source and each CAIRNOX 
Ozone Season unit at the source and all documents thatdemonstrate the 
truth of the statements in the certificate ofrepresentation; provided 
that the certificate and documents shall beretained on site at the 
source beyond such 5-year period until suchdocuments are superseded 
because of the submission of a newcertificate of representation under 
Sec. 97.313 changing theCAIR designated representative.
    (ii) All emissions monitoring information, in accordance withsubpart 
HHHH of this part, provided that to the extent that subpartHHHH of this 
part provides for a 3-year period for recordkeeping, the3-year period 
shall apply.

[[Page 995]]

    (iii) Copies of all reports, compliance certifications, andother 
submissions and all records made or required under the 
CAIRNOX Ozone Season Trading Program.
    (iv) Copies of all documents used to complete a CAIR 
permitapplication and any other submission under the CAIR 
NOXOzone Season Trading Program or to demonstrate compliance 
with therequirements of the CAIR NOX Ozone Season Trading 
Program.
    (2) The CAIR designated representative of a CAIR NOXOzone 
Season source and each CAIR NOX Ozone Season unit atthe 
source shall submit the reports required under the CAIRNOX 
Ozone Season Trading Program, including those undersubpart HHHH of this 
part.
    (f) Liability. (1) Each CAIR NOX Ozone Seasonsource and 
each CAIR NOX Ozone Season unit shall meet therequirements of 
the CAIR NOX Ozone Season Trading Program.
    (2) Any provision of the CAIR NOX Ozone Season 
TradingProgram that applies to a CAIR NOX Ozone Season source 
orthe CAIR designated representative of a CAIR NOX 
OzoneSeason source shall also apply to the owners and operators of 
suchsource and of the CAIR NOX Ozone Season units at 
thesource.
    (3) Any provision of the CAIR NOX Ozone Season 
TradingProgram that applies to a CAIR NOX Ozone Season unit 
orthe CAIR designated representative of a CAIR NOX 
OzoneSeason unit shall also apply to the owners and operators of such 
unit.
    (g) Effect on other authorities. No provision of the 
CAIRNOX Ozone Season Trading Program, a CAIR 
permitapplication, a CAIR permit, or an exemption underSec. 97.305 
shall be construed as exempting or excluding theowners and operators, 
and the CAIR designated representative, of aCAIR NOX Ozone 
Season source or CAIR NOX OzoneSeason unit from compliance 
with any other provision of theapplicable, approved State implementation 
plan, a federallyenforceable permit, or the Clean Air Act.



Sec. 97.307  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Ozone Season Trading Program, to begin on 
theoccurrence of an act or event shall begin on the day the act or 
eventoccurs.
    (b) Unless otherwise stated, any time period scheduled, under 
theCAIR NOX Ozone Season Trading Program, to begin before 
theoccurrence of an act or event shall be computed so that the 
periodends the day before the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time 
period,under the CAIR NOX Ozone Season Trading Program, falls 
ona weekend or a State or Federal holiday, the time period shall 
beextended to the next business day.



Sec. 97.308  Appeal procedures.

    The appeal procedures for decisions of the Administrator under 
theCAIR NOX Ozone Season Trading Program are set forth inpart 
78 of this chapter.



 Sec. Appendix A to Subpart AAAA ofPart 97--States With Approved State 

          Implementation PlanRevisions Concerning Applicability

    The following States have State Implementation Plan revisionsunder 
Sec. 51.123(ee)(1) of this chapter approved by theAdministrator and 
providing for expansion of the applicabilityprovisions to include all 
non-EGUs subject to the respective State'semission trading program 
approved under Sec. 51.121(p) ofthis chapter:
    Michigan

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 72262, Dec.20, 2007]



  Subpart BBBB_CAIR Designated Representative for CAIRNOX Ozone Season 
                                 Sources



Sec. 97.310  Authorization and responsibilities of CAIR designatedrepresentative.

    (a) Except as provided under Sec. 97.311, each CAIRNOX 
Ozone Season source, including all CAIRNOX Ozone Season units 
at the source, shall have one andonly one CAIR designated 
representative, with regard to all mattersunder the CAIR NOX 
Ozone Season Trading Program concerningthe source or any CAIR 
NOX Ozone Season unit at thesource.
    (b) The CAIR designated representative of the CAIR 
NOXOzone Season

[[Page 996]]

source shall be selected by an agreement binding onthe owners and 
operators of the source and all CAIR NOXOzone Season units at 
the source and shall act in accordance with thecertification statement 
in Sec. 97.313(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 97.313, the CAIR designatedrepresentative 
of the source shall represent and, by his or herrepresentations, 
actions, inactions, or submissions, legally bind eachowner and operator 
of the CAIR NOX Ozone Season sourcerepresented and each CAIR 
NOX Ozone Season unit at thesource in all matters pertaining 
to the CAIR NOX OzoneSeason Trading Program, notwithstanding 
any agreement between the CAIRdesignated representative and such owners 
and operators. The ownersand operators shall be bound by any decision or 
order issued to theCAIR designated representative by the permitting 
authority, theAdministrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports willbe 
accepted, and no CAIR NOX Ozone Season AllowanceTracking 
System account will be established for a CAIR NOXOzone Season 
unit at a source, until the Administrator has received acomplete 
certificate of representation under Sec. 97.313 fora CAIR designated 
representative of the source and the CAIRNOX Ozone Season 
units at the source.
    (e)(1) Each submission under the CAIR NOX Ozone 
SeasonTrading Program shall be submitted, signed, and certified by the 
CAIRdesignated representative for each CAIR NOX Ozone 
Seasonsource on behalf of which the submission is made. Each such 
submissionshall include the following certification statement by the 
CAIRdesignated representative: ``I am authorized to make thissubmission 
on behalf of the owners and operators of the source orunits for which 
the submission is made. I certify under penalty of lawthat I have 
personally examined, and am familiar with, the statementsand information 
submitted in this document and all its attachments.Based on my inquiry 
of those individuals with primary responsibilityfor obtaining the 
information, I certify that the statements andinformation are to the 
best of my knowledge and belief true, accurate,and complete. I am aware 
that there are significant penalties forsubmitting false statements and 
information or omitting requiredstatements and information, including 
the possibility of fine orimprisonment.''
    (2) The permitting authority and the Administrator will accept oract 
on a submission made on behalf of owner or operators of a 
CAIRNOX Ozone Season source or a CAIR NOX 
OzoneSeason unit only if the submission has been made, signed, 
andcertified in accordance with paragraph (e)(1) of this section.



Sec. 97.311  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.313may designate 
one and only one alternate CAIR designatedrepresentative, who may act on 
behalf of the CAIR designatedrepresentative. The agreement by which the 
alternate CAIR designatedrepresentative is selected shall include a 
procedure for authorizingthe alternate CAIR designated representative to 
act in lieu of theCAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate 
ofrepresentation under Sec. 97.313, any representation,action, 
inaction, or submission by the alternate CAIR designatedrepresentative 
shall be deemed to be a representation, action,inaction, or submission 
by the CAIR designated representative.
    (c) Except in this section and Sec. Sec. 97.302,97.310(a) and (d), 
97.312, 97.313, 97.315, 97.351, and 97.382,whenever the term ``CAIR 
designated representative'' isused in subparts AAAA through IIII of this 
part, the term shall beconstrued to include the CAIR designated 
representative or anyalternate CAIR designated representative.



Sec. 97.312  Changing CAIR designated representative and alternate CAIRdesignated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIRdesignated 
representative may be changed at any

[[Page 997]]

time upon receiptby the Administrator of a superseding complete 
certificate ofrepresentation under Sec. 97.313. Notwithstanding any 
suchchange, all representations, actions, inactions, and submissions 
bythe previous CAIR designated representative before the time and 
datewhen the Administrator receives the superseding certificate 
ofrepresentation shall be binding on the new CAIR 
designatedrepresentative and the owners and operators of the 
CAIRNOX Ozone Season source and the CAIR NOX 
OzoneSeason units at the source.
    (b) Changing alternate CAIR designated representative. Thealternate 
CAIR designated representative may be changed at any timeupon receipt by 
the Administrator of a superseding completecertificate of representation 
under Sec. 97.313.Notwithstanding any such change, all representations, 
actions,inactions, and submissions by the previous alternate CAIR 
designatedrepresentative before the time and date when the 
Administratorreceives the superseding certificate of representation 
shall bebinding on the new alternate CAIR designated representative and 
theowners and operators of the CAIR NOX Ozone Season 
sourceand the CAIR NOX Ozone Season units at the source.
    (c) Changes in owners and operators. (1) In the event anowner or 
operator of a CAIR NOX Ozone Season source or aCAIR 
NOX Ozone Season unit is not included in the list ofowners 
and operators in the certificate of representation underSec. 97.313, 
such owner or operator shall be deemed to besubject to and bound by the 
certificate of representation, therepresentations, actions, inactions, 
and submissions of the CAIRdesignated representative and any alternate 
CAIR designatedrepresentative of the source or unit, and the decisions 
and orders ofthe permitting authority, the Administrator, or a court, as 
if theowner or operator were included in such list.
    (2) Within 30 days following any change in the owners andoperators 
of a CAIR NOX Ozone Season source or a CAIRNOX 
Ozone Season unit, including the addition of a newowner or operator, the 
CAIR designated representative or any alternateCAIR designated 
representative shall submit a revision to thecertificate of 
representation under Sec. 97.313 amending thelist of owners and 
operators to include the change.



Sec. 97.313  Certificate of representation.

    (a) A complete certificate of representation for a CAIR 
designatedrepresentative or an alternate CAIR designated representative 
shallinclude the following elements in a format prescribed by 
theAdministrator:
    (1) Identification of the CAIR NOX Ozone Seasonsource, 
and each CAIR NOX Ozone Season unit at the source,for which 
the certificate of representation is submitted, includingidentification 
and nameplate capacity of each generator served by eachsuch unit.
    (2) The name, address, e-mail address (if any), telephone number,and 
facsimile transmission number (if any) of the CAIR 
designatedrepresentative and any alternate CAIR designated 
representative.
    (3) A list of the owners and operators of the CAIR 
NOXOzone Season source and of each CAIR NOX Ozone 
Season unitat the source.
    (4) The following certification statements by the CAIR 
designatedrepresentative and any alternate CAIR 
designatedrepresentative--
    (i) ``I certify that I was selected as the CAIR 
designatedrepresentative or alternate CAIR designated representative, 
asapplicable, by an agreement binding on the owners and operators of 
thesource and each CAIR NOX Ozone Season unit at thesource.''
    (ii) ``I certify that I have all the necessary authority tocarry out 
my duties and responsibilities under the CAIRNOX Ozone Season 
Trading Program on behalf of the ownersand operators of the source and 
of each CAIR NOX OzoneSeason unit at the source and that each 
such owner and operator shallbe fully bound by my representations, 
actions, inactions, orsubmissions.''
    (iii) ``I certify that the owners and operators of thesource and of 
each CAIR NOX Ozone Season unit at thesource shall be bound 
by any order issued to me by the Administrator,the permitting authority, 
or a court regarding the source orunit.''

[[Page 998]]

    (iv) ``Where there are multiple holders of a legal orequitable title 
to, or a leasehold interest in, a CAIR NOXOzone Season unit, 
or where a utility or industrial customer purchasespower from a CAIR 
NOX Ozone Season unit under a life-of-the-unit, firm power 
contractual arrangement, I certify that: I havegiven a written notice of 
my selection as the `CAIR designatedrepresentative' or `alternate CAIR 
designatedrepresentative', as applicable, and of the agreement by which 
Iwas selected to each owner and operator of the source and of each 
CAIRNOX Ozone Season unit at the source; and 
CAIRNOX Ozone Season allowances and proceeds of 
transactionsinvolving CAIR NOX Ozone Season allowances will 
be deemedto be held or distributed in proportion to each holder's 
legal,equitable, leasehold, or contractual reservation or 
entitlement,except that, if such multiple holders have expressly 
provided for adifferent distribution of CAIR NOX Ozone Season 
allowancesby contract, CAIR NOX Ozone Season allowances and 
proceedsof transactions involving CAIR NOX Ozone Season 
allowanceswill be deemed to be held or distributed in accordance with 
thecontract.''
    (5) The signature of the CAIR designated representative and 
anyalternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
certificateof representation shall not be submitted to the permitting 
authorityor the Administrator. Neither the permitting authority nor 
theAdministrator shall be under any obligation to review or evaluate 
thesufficiency of such documents, if submitted.



Sec. 97.314  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation underSec. 97.313 
has been submitted and received, the permittingauthority and the 
Administrator will rely on the certificate ofrepresentation unless and 
until a superseding complete certificate ofrepresentation under Sec. 
97.313 is received by theAdministrator.
    (b) Except as provided in Sec. 97.312(a) or (b), noobjection or 
other communication submitted to the permitting authorityor the 
Administrator concerning the authorization, or anyrepresentation, 
action, inaction, or submission, of the CAIRdesignated representative 
shall affect any representation, action,inaction, or submission of the 
CAIR designated representative or thefinality of any decision or order 
by the permitting authority or theAdministrator under the CAIR 
NOX Ozone Season TradingProgram.
    (c) Neither the permitting authority nor the Administrator 
willadjudicate any private legal dispute concerning the authorization 
orany representation, action, inaction, or submission of any 
CAIRdesignated representative, including private legal disputes 
concerningthe proceeds of CAIR NOX Ozone Season allowance 
transfers.



Sec. 97.315  Delegation by CAIR designated representative and alternate CAIRdesignated representative.

    (a) A CAIR designated representative may delegate, to one or 
morenatural persons, his or her authority to make an electronic 
submissionto the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, toone 
or more natural persons, his or her authority to make anelectronic 
submission to the Administrator provided for or requiredunder this part.
    (c) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (a) or(b) of this 
section, the CAIR designated representative or alternateCAIR designated 
representative, as appropriate, must submit to theAdministrator a notice 
of delegation, in a format prescribed by theAdministrator, that includes 
the following elements:
    (1) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR 
designatedrepresentative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such

[[Page 999]]

naturalperson (referred to as an ``agent'');
    (3) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (a) or (b) of this section 
forwhich authority is delegated to him or her; and
    (4) The following certification statements by such CAIR 
designatedrepresentative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to theAdministrator 
that is by an agent identified in this notice ofdelegation and of a type 
listed for such agent in this notice ofdelegation and that is made when 
I am a CAIR designated representativeor alternate CAIR designated 
representative, as appropriate, andbefore this notice of delegation is 
superseded by another notice ofdelegation under 40 CFR 97.315(d) shall 
be deemed to be an electronicsubmission by me.''
    (ii) ``Until this notice of delegation is superseded byanother 
notice of delegation under 40 CFR 97.315(d), I agree tomaintain an e-
mail account and to notify the Administrator immediatelyof any change in 
my e-mail address unless all delegation of authorityby me under 40 CFR 
97.315 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of 
thissection shall be effective, with regard to the CAIR 
designatedrepresentative or alternate CAIR designated representative 
identifiedin such notice, upon receipt of such notice by the 
Administrator anduntil receipt by the Administrator of a superseding 
notice ofdelegation submitted by such CAIR designated representative 
oralternate CAIR designated representative, as appropriate. 
Thesuperseding notice of delegation may replace any previously 
identifiedagent, add a new agent, or eliminate entirely any delegation 
ofauthority.
    (e) Any electronic submission covered by the certification 
inparagraph (c)(4)(i) of this section and made in accordance with 
anotice of delegation effective under paragraph (d) of this sectionshall 
be deemed to be an electronic submission by the CAIR 
designatedrepresentative or alternate CAIR designated representative 
submittingsuch notice of delegation.



                          Subpart CCCC_Permits



Sec. 97.320  General CAIR NOX Ozone Season Trading Program permitrequirements.

    (a) For each CAIR NOX Ozone Season source required tohave 
a title V operating permit or required, under subpart IIII ofthis part, 
to have a title V operating permit or other federallyenforceable permit, 
such permit shall include a CAIR permitadministered by the permitting 
authority for the title V operatingpermit or the federally enforceable 
permit as applicable. The CAIRportion of the title V permit or other 
federally enforceable permit asapplicable shall be administered in 
accordance with the permittingauthority's title V operating permits 
regulations promulgated underpart 70 or 71 of this chapter or the 
permitting authority'sregulations for other federally enforceable 
permits as applicable,except as provided otherwise by Sec. 97.305, this 
subpart,and subpart IIII of this part.
    (b) Each CAIR permit shall contain, with regard to the 
CAIRNOX Ozone Season source and the CAIR NOX 
OzoneSeason units at the source covered by the CAIR permit, all 
applicableCAIR NOX Ozone Season Trading Program, 
CAIRNOX Annual Trading Program, and CAIR 
SO2Trading Program requirements and shall be a complete and 
separableportion of the title V operating permit or other federally 
enforceablepermit under paragraph (a) of this section.



Sec. 97.321  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of anyCAIR 
NOX Ozone Season source required to have a title Voperating 
permit shall submit to the permitting authority a completeCAIR permit 
application under Sec. 97.322 for the sourcecovering each CAIR 
NOX Ozone Season unit at the source atleast 18 months (or 
such lesser time provided by the permittingauthority) before the later 
of January 1, 2009 or the date on whichthe CAIR NOX Ozone 
Season unit commences commercialoperation, except as provided in Sec. 
97.383(a).
    (b) Duty to reapply. For a CAIR NOX Ozone Seasonsource 
required to have a

[[Page 1000]]

title V operating permit, the CAIRdesignated representative shall submit 
a complete CAIR permitapplication under Sec. 97.322 for the source 
covering eachCAIR NOX Ozone Season unit at the source to 
renew the CAIRpermit in accordance with the permitting authority's title 
V operatingpermits regulations addressing permit renewal, except as 
provided inSec. 97.383(b).



Sec. 97.322  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the 
followingelements concerning the CAIR NOX Ozone Season source 
forwhich the application is submitted, in a format prescribed by 
thepermitting authority:
    (a) Identification of the CAIR NOX Ozone Seasonsource;
    (b) Identification of each CAIR NOX Ozone Season unitat 
the CAIR NOX Ozone Season source; and
    (c) The standard requirements under Sec. 97.306.



Sec. 97.323  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by 
thepermitting authority, all elements required for a complete CAIR 
permitapplication under Sec. 97.322.
    (b) Each CAIR permit is deemed to incorporate automatically 
thedefinitions of terms under Sec. 97.302 and, upon recordationby the 
Administrator under subpart EEEE, FFFF, GGGG, or IIII of thispart, every 
allocation, transfer, or deduction of a CAIRNOX Ozone Season 
allowance to or from the complianceaccount of the CAIR NOX 
Ozone Season source covered by thepermit.
    (c) The term of the CAIR permit will be set by the 
permittingauthority, as necessary to facilitate coordination of the 
renewal ofthe CAIR permit with issuance, revision, or renewal of the 
CAIRNOX Ozone Season source's title V operating permit 
orother federally enforceable permit as applicable.



Sec. 97.324  CAIR permit revisions.

    Except as provided in Sec. 97.323(b), the permittingauthority will 
revise the CAIR permit, as necessary, in accordancewith the permitting 
authority's title V operating permits regulationsor the permitting 
authority's regulations for other federallyenforceable permits as 
applicable addressing permit revisions.

Subpart DDDD [Reserved]



         Subpart EEEE_CAIR NOX Ozone SeasonAllowance Allocations



Sec. 97.340  State trading budgets.

    (a) Except as provided in paragraph (b) of this section, the 
Statetrading budgets for annual allocations of CAIR NOX 
OzoneSeason allowances for the control periods in 2009 through 2014 and 
in2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                           State trading
                                           State trading    budget for
                  State                   budget for2009-      2015
                                            2014 (tons)    andthereafter
                                                              (tons)
------------------------------------------------------------------------
Alabama.................................          32,182          26,818
Arkansas................................          11,515           9,597
Connecticut.............................           2,559           2,559
Delaware................................           2,226           1,855
District of Columbia....................             112              94
Florida.................................          47,912          39,926
Illinois................................          30,701          28,981
Indiana.................................          45,952          39,273
Iowa....................................          14,263          11,886
Kentucky................................          36,045          30,587
Louisiana...............................          17,085          14,238
Maryland................................          12,834          10,695
Massachusetts...........................           7,551           6,293
Michigan................................          28,971          24,142
Mississippi.............................           8,714           7,262
Missouri................................          26,678          22,231
New Jersey..............................           6,654           5,545
New York................................          20,632          17,193
North Carolina..........................          28,392          23,660
Ohio....................................          45,664          39,945
Pennsylvania............................          42,171          35,143
South Carolina..........................          15,249          12,707
Tennessee...............................          22,842          19,035
Virginia................................          15,994          13,328
West Virginia...........................          26,859          26,525
Wisconsin...............................          17,987          14,989
------------------------------------------------------------------------

    (b) Upon approval by the Administrator of a State's 
Stateimplementation plan revision under Sec. 51.123(ee)(1) ofthis 
chapter providing for the inclusion in the CAIR NOXOzone 
Season Trading Program of all units that are not otherwise 
CAIRNOX Ozone Season units under Sec. 97.304(a) and(b) and 
that are NOX Budget units covered by the State'semissions 
trading program approved under Sec. 51.121(p), theamount in the State 
trading budget for a control period in a calendaryear will be the sum of 
the amount set forth for the

[[Page 1001]]

State andfor the year in paragraph (a) of this section and the amount 
ofadditional CAIR NOX Ozone Season allowance 
allocationsissued under Sec. 51.123(ee)(1)(ii)(A) of this chapter 
forthe year.



Sec. 97.341  Timing requirements for CAIR NOX Ozone Season allowanceallocations.

    (a) The Administrator will determine by order the CAIRNOX 
Ozone Season allowance allocations, in accordance withSec. 97.342(a) 
and (b), for the control periods in 2009,2010, 2011, 2012, 2013, and 
2014.
    (b) By July 31, 2011 and July 31 of each year thereafter, 
theAdministrator will determine by order the CAIR NOX 
OzoneSeason allowance allocations, in accordance withSec. 97.342(a) and 
(b), for the control period in the fourthyear after the year of the 
applicable deadline for determination underthis paragraph.
    (c) By April 30, 2009 and April 30 of each year thereafter, 
theAdministrator will determine by order the CAIR NOX 
OzoneSeason allowance allocations, in accordance withSec. 97.342(a), 
(c), and (d), for the control period in theyear of the applicable 
deadline for determination under thisparagraph.
    (d) The Administrator will make available to the public 
eachdetermination of CAIR NOX Ozone Season allowances 
underparagraph (a), (b), or (c) of this section and will provide 
anopportunity for submission of objections to the 
determination.Objections shall be limited to addressing whether the 
determination isin accordance with Sec. 97.342. Based on any 
suchobjections, the Administrator will adjust each determination to 
theextent necessary to ensure that it is in accordance withSec. 97.342.



Sec. 97.342  CAIR NOX Ozone Season allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect toCAIR 
NOX Ozone Season allowance allocations underparagraph (b) of 
this section for each CAIR NOX OzoneSeason unit will be:
    (i) For units commencing operation before January 1, 2001 theaverage 
of the 3 highest amounts of the unit's adjusted control periodheat input 
for 2000 through 2004, with the adjusted control periodheat input for 
each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's 
controlperiod heat input for such year is multiplied by 60 percent; and
    (C) If the unit is not subject to paragraph (a)(1)(i)(A) or (B) 
ofthis section, the unit's control period heat input for such year 
ismultiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001and 
operating each calendar year during a period of 5 or moreconsecutive 
calendar years, the average of the 3 highest amounts ofthe unit's total 
converted control period heat input over the firstsuch 5 years.
    (2)(i) A unit's control period heat input, and a unit's status 
ascoal-fired or oil-fired, for a calendar year under paragraph 
(a)(1)(i)of this section, and a unit's total tons of NOX 
emissionsduring a control period in a calendar year under paragraph 
(c)(3) ofthis section, will be determined in accordance with part 75 of 
thischapter, to the extent the unit was otherwise subject to 
therequirements of part 75 of this chapter for the year, or will be 
basedon the best available data reported to the Administrator for the 
unit(in a format prescribed by the Administrator), to the extent the 
unitwas not otherwise subject to the requirements of part 75 of 
thischapter for the year.
    (ii) A unit's converted control period heat input for a calendaryear 
specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of 
thissection, the control period gross electrical output of the 
generatoror generators served by the unit multiplied by 7,900 Btu/kWh, 
if theunit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is 
notcoal-fired for the year, and divided by 1,000,000 Btu/mmBtu, 
providedthat if a generator is served by 2 or more units, then the 
grosselectrical output of the generator will be attributed to

[[Page 1002]]

eachunit in proportion to the unit's share of the total control 
periodheat input of such units for the year;
    (B) For a unit that is a boiler and has equipment used to 
produceelectricity and useful thermal energy for industrial, 
commercial,heating, or cooling purposes through the sequential use of 
energy, thetotal heat energy (in Btu) of the steam produced by the 
boiler duringthe control period, divided by 0.8 and by 1,000,000 Btu/
mmBtu; or
    (C) For a unit that is a combustion turbine and has equipment usedto 
produce electricity and useful thermal energy for industrial,commercial, 
heating, or cooling purposes through the sequential use ofenergy, the 
control period gross electrical output of the encloseddevice comprising 
the compressor, combustor, and turbine multiplied by3,413 Btu/kWh, plus 
the total heat energy (in Btu) of the steamproduced by any associated 
heat recovery steam generator during thecontrol period divided by 0.8, 
and with the sum divided by 1,000,000Btu/mmBtu.
    (iii) Gross electrical output and total heat energy underparagraph 
(a)(2)(ii) of this section will be determined based on thebest available 
data reported to the Administrator for the unit (in aformat prescribed 
by the Administrator).
    (3) The Administrator will determine what data are the bestavailable 
data under paragraph (a)(2) of this section by weighing thelikelihood 
that data are accurate and reliable and giving greaterweight to data 
submitted to a governmental entity in compliance withlegal requirements 
or substantiated by an independent entity.
    (b)(1) For each control period in 2009 and thereafter, 
theAdministrator will allocate to all CAIR NOX Ozone 
Seasonunits in a State that have a baseline heat input (as determined 
underparagraph (a) of this section) a total amount of CAIR 
NOXOzone Season allowances equal to 95 percent for a control 
periodduring 2009 through 2014, and 97 percent for a control period 
during2015 and thereafter, of the tons of NOX emissions in 
theapplicable State trading budget under Sec. 97.340 (except asprovided 
in paragraphs (d) and (e) of this section).
    (2) The Administrator will allocate CAIR NOX OzoneSeason 
allowances to each CAIR NOX Ozone Season unit underparagraph 
(b)(1) of this section in an amount determined bymultiplying the total 
amount of CAIR NOX Ozone Seasonallowances allocated under 
paragraph (b)(1) of this section by theratio of the baseline heat input 
of such CAIR NOX OzoneSeason unit to the total amount of 
baseline heat input of all suchCAIR NOX Ozone Season units in 
the State and rounding tothe nearest whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, theAdministrator 
will allocate CAIR NOX Ozone Seasonallowances to CAIR 
NOX Ozone Season units in a State thatare not allocated CAIR 
NOX Ozone Season allowances underparagraph (b) of this 
section because the units do not yet have abaseline heat input under 
paragraph (a) of this section or because theunits have a baseline heat 
input but all CAIR NOX OzoneSeason allowances available under 
paragraph (b) of this section forthe control period are already 
allocated, in accordance with thefollowing procedures:
    (1) The Administrator will establish a separate new unit set-
asidefor each control period. Each new unit set-aside will be 
allocatedCAIR NOX Ozone Season allowances equal to 5 percent 
for acontrol period in 2009 through 2014, and 3 percent for a 
controlperiod in 2015 and thereafter, of the amount of tons 
ofNOX emissions in the applicable State trading budget 
underSec. 97.340.
    (2) The CAIR designated representative of such a CAIRNOX 
Ozone Season unit may submit to the Administrator arequest, in a format 
specified by the Administrator, to be allocatedCAIR NOX Ozone 
Season allowances, starting with the laterof the control period in 2009 
or the first control period after thecontrol period in which the CAIR 
NOX Ozone Season unitcommences commercial operation and until 
the first control period forwhich the unit is allocated CAIR 
NOX Ozone Seasonallowances under paragraph (b) of this 
section. A separate CAIRNOX Ozone Season allowance allocation 
request for eachcontrol period for which CAIR NOX Ozone 
Season allowancesare sought must be submitted on or before

[[Page 1003]]

February 1 before suchcontrol period and after the date on which the 
CAIR NOXOzone Season unit commences commercial operation.
    (3) In a CAIR NOX Ozone Season allowance 
allocationrequest under paragraph (c)(2) of this section, the CAIR 
designatedrepresentative may request for a control period CAIR 
NOXOzone Season allowances in an amount not exceeding the 
CAIRNOX Ozone Season unit(s total tons of 
NOXemissions during the control period immediately before 
such controlperiod.
    (4) The Administrator will review each CAIR NOX 
OzoneSeason allowance allocation request under paragraph (c)(2) of 
thissection and will allocate CAIR NOX Ozone Season 
allowancesfor each control period pursuant to such request as follows:
    (i) The Administrator will accept an allowance allocation 
requestonly if the request meets, or is adjusted by the Administrator 
asnecessary to meet, the requirements of paragraphs (c)(2) and (3) 
ofthis section.
    (ii) On or after February 1 before the control period, 
theAdministrator will determine the sum of the CAIR NOX 
OzoneSeason allowances requested (as adjusted under paragraph (c)(4)(i) 
ofthis section) in all allowance allocation requests accepted 
underparagraph (c)(4)(i) of this section for the control period.
    (iii) If the amount of CAIR NOX Ozone Seasonallowances in 
the new unit set-aside for the control period is greaterthan or equal to 
the sum under paragraph (c)(4)(ii) of this section,then the 
Administrator will allocate the amount of CAIRNOX Ozone 
Season allowances requested (as adjusted underparagraph (c)(4)(i) of 
this section) to each CAIR NOXOzone Season unit covered by an 
allowance allocation request acceptedunder paragraph (c)(4)(i) of this 
section.
    (iv) If the amount of CAIR NOX Ozone Season allowancesin 
the new unit set-aside for the control period is less than the sumunder 
paragraph (c)(4)(ii) of this section, then the Administratorwill 
allocate to each CAIR NOX Ozone Season unit coveredby an 
allowance allocation request accepted under paragraph (c)(4)(i)of this 
section the amount of the CAIR NOX Ozone Seasonallowances 
requested (as adjusted under paragraph (c)(4)(i) of thissection), 
multiplied by the amount of CAIR NOX OzoneSeason allowances 
in the new unit set-aside for the control period,divided by the sum 
determined under paragraph (c)(4)(ii) of thissection, and rounded to the 
nearest whole allowance as appropriate.
    (v) The Administrator will notify each CAIR designatedrepresentative 
that submitted an allowance allocation request of theamount of CAIR 
NOX Ozone Season allowances (if any)allocated for the control 
period to the CAIR NOX OzoneSeason unit covered by the 
request.
    (d) If, after completion of the procedures under paragraph (c)(4)of 
this section for a control period, any unallocated CAIRNOX 
Ozone Season allowances remain in the new unit set-aside under paragraph 
(c) of this section for a State for the controlperiod, the Administrator 
will allocate to each CAIR NOXOzone Season unit that was 
allocated CAIR NOX Ozone Seasonallowances under paragraph (b) 
of this section in the State an amountof CAIR NOX Ozone 
Season allowances equal to the totalamount of such remaining unallocated 
CAIR NOX Ozone Seasonallowances, multiplied by the unit's 
allocation under paragraph (b) ofthis section, divided by 95 percent for 
a control period during 2009through 2014, and 97 percent for a control 
period during 2015 andthereafter, of the amount of tons of 
NOX emissions in theapplicable State trading budget under 
Sec. 97.340, androunded to the nearest whole allowance as appropriate.
    (e) If the Administrator determines that CAIR NOXOzone 
Season allowances were allocated under paragraphs (a) and (b) ofthis 
section, paragraphs (a) and (c) of this section, or paragraph (d)of this 
section for a control period and that the recipient of theallocation is 
not actually a CAIR NOX Ozone Season unitunder Sec. 97.304 
in such control period, then theAdministrator will notify the CAIR 
designated representative and willact in accordance with the following 
procedures:
    (1) Except as provided in paragraph (e)(2) or (3) of this 
section,the Administrator will not record such CAIR NOX 
OzoneSeason allowances under Sec. 97.353.

[[Page 1004]]

    (2) If the Administrator already recorded such CAIRNOX 
Ozone Season allowances under Sec. 97.353and if the Administrator makes 
such determinations before makingdeductions for the source that includes 
such recipient underSec. 97.354(b) for the control period, then 
theAdministrator will deduct from the account in which such 
CAIRNOX Ozone Season allowances were recorded underSec. 
97.353 an amount of CAIR NOX Ozone Seasonallowances allocated 
for the same or a prior control period equal tothe amount of such 
already recorded CAIR NOX Ozone Seasonallowances. The CAIR 
designated representative shall ensure that thereare sufficient CAIR 
NOX Ozone Season allowances in suchaccount for completion of 
the deduction.
    (3) If the Administrator already recorded such CAIRNOX 
Ozone Season allowances under Sec. 97.353and if the Administrator makes 
such determinations after makingdeductions for the source that includes 
such recipient underSec. 97.354(b) for the control period, then 
theAdministrator will apply paragraph (e)(1) or (2) of this section, 
asappropriate, to any subsequent control period for which 
CAIRNOX Ozone Season allowances were allocated to 
suchrecipient.
    (4) The Administrator will transfer the CAIR NOX 
OzoneSeason allowances that are not recorded, or that are deducted, 
inaccordance with paragraphs (e)(1), (2), and (3) of this section to 
anew unit set-aside for the State in which such recipient is located.



Sec. 97.343   Alternative of allocation of CAIR NOX Ozone Seasonallowances by permitting authority.

    (a) Notwithstanding Sec. Sec. 97.341, 97.342, and97.353 if a State 
submits, and the Administrator approves, a Stateimplementation plan 
revision in accordance withSec. 51.123(ee)(2) of this chapter providing 
for allocationof CAIR NOX Ozone Season allowances by the 
permittingauthority, then the permitting authority shall make such 
allocationsin accordance with such approved State implementation plan 
revision,the Administrator will not make allocations underSec. Sec. 
97.341 and 97.342 for the CAIR NOXOzone Season units in the 
State, and under Sec. 97.353, theAdministrator will record allocations 
made under such approved Stateimplementation plan revision instead of 
allocations underSec. Sec. 97.341 and 97.342.
    (b) In implementing paragraph(a) of this section andSec. Sec. 
97.341, 97.342, and 97.353, the Administratorwill ensure that the total 
amount of CAIR NOX Ozone Seasonallowances allocated, under 
such provisions and under a State's Stateimplementation plan revision 
approved in accordance withSec. 51.123(ee)(2) of this chapter, for a 
control period forCAIR NOX Ozone Season sources in the State 
or for otherentities specified by the permitting authority will not 
exceed theState's State trading budget for the year of the control 
period.



 Sec. Appendix A to Subpart EEEE ofPart 97--States With Approved State 

           Implementation PlanRevisions Concerning Allocations


    The following States have State Implementation Plan revisionsunder 
Sec. 51.123(ee)(2) of this chapter approved by theAdministrator and 
providing for allocation of CAIR NOXOzone Season allowances 
by the permitting authority underSec. 97.343(a):
    Indiana
    Louisiana
    Michigan
    New Jersey
    North Carolina
     Ohio
    South Carolina
    Tennessee
    West Virginia (for control periods 2009-2014)
     Wisconsin

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 46394, Aug.20, 2007; 72 
FR 52293, Sept. 13, 2007; 72 FR 55068, Sept. 28, 2007; 72FR 55659, 
55672, Oct 1, 2007, 72 FR 56920, Oct. 5, 2007; 72 FR 57215,Oct. 9, 2007; 
72 FR 58546, Oct. 16, 2007; 72 FR 59487, Oct. 22, 2007;72 FR 71579, Dec. 
18, 2007; 72 FR 72263, Dec. 20, 2007; 73 FR 6041,Feb. 1, 2008]



       Subpart FFFF_CAIR NOX Ozone SeasonAllowance Tracking System



Sec. 97.350  [Reserved]



Sec. 97.351   Establishment of accounts.

    (a) Compliance accounts. Except as provided inSec. 97.384(e), upon 
receipt of a complete certificate ofrepresentation

[[Page 1005]]

under Sec. 97.313, the Administratorwill establish a compliance account 
for the CAIR NOX OzoneSeason source for which the certificate 
of representation wassubmitted, unless the source already has a 
compliance account.
    (b) General accounts--(1) Application for generalaccount. (i) Any 
person may apply to open a general account for thepurpose of holding and 
transferring CAIR NOX Ozone Seasonallowances. An application 
for a general account may designate one andonly one CAIR authorized 
account representative and one and only onealternate CAIR authorized 
account representative who may act on behalfof the CAIR authorized 
account representative. The agreement by whichthe alternate CAIR 
authorized account representative is selected shallinclude a procedure 
for authorizing the alternate CAIR authorizedaccount representative to 
act in lieu of the CAIR authorized accountrepresentative.
    (ii) A complete application for a general account shall besubmitted 
to the Administrator and shall include the followingelements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephonenumber, 
and facsimile transmission number (if any) of the CAIRauthorized account 
representative and any alternate CAIR authorizedaccount representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for theCAIR 
authorized account representative and any alternate CAIRauthorized 
account representative to represent their ownershipinterest with respect 
to the CAIR NOX Ozone Seasonallowances held in the general 
account;
    (D) The following certification statement by the CAIR 
authorizedaccount representative and any alternate CAIR authorized 
accountrepresentative: ``I certify that I was selected as the 
CAIRauthorized account representative or the alternate CAIR 
authorizedaccount representative, as applicable, by an agreement that is 
bindingon all persons who have an ownership interest with respect to 
CAIRNOX Ozone Season allowances held in the general account. 
Icertify that I have all the necessary authority to carry out my 
dutiesand responsibilities under the CAIR NOX Ozone 
SeasonTrading Program on behalf of such persons and that each such 
personshall be fully bound by my representations, actions, inactions, 
orsubmissions and by any order or decision issued to me by 
theAdministrator or a court regarding the general account.''
    (E) The signature of the CAIR authorized account representativeand 
any alternate CAIR authorized account representative and the 
datessigned.
    (iii) Unless otherwise required by the permitting authority or 
theAdministrator, documents of agreement referred to in the 
applicationfor a general account shall not be submitted to the 
permittingauthority or the Administrator. Neither the permitting 
authority northe Administrator shall be under any obligation to review 
or evaluatethe sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receiptby 
the Administrator of a complete application for a general accountunder 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for theperson 
or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternateCAIR 
authorized account representative for the general account shallrepresent 
and, by his or her representations, actions, inactions, orsubmissions, 
legally bind each person who has an ownership interestwith respect to 
CAIR NOX Ozone Season allowances held inthe general account 
in all matters pertaining to the CAIRNOX Ozone Season Trading 
Program, notwithstanding anyagreement between the CAIR authorized 
account representative or anyalternate CAIR authorized account 
representative and such person. Anysuch person shall be bound by any 
order or decision issued to the CAIRauthorized account representative or 
any alternate CAIR authorizedaccount representative by the Administrator 
or a court regarding thegeneral account.

[[Page 1006]]

    (C) Any representation, action, inaction, or submission byany 
alternate CAIR authorized account representative shall be deemedto be a 
representation, action, inaction, or submission by the CAIRauthorized 
account representative.
    (ii) Each submission concerning the general account shall 
besubmitted, signed, and certified by the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor the persons having an ownership interest with respect 
to CAIRNOX Ozone Season allowances held in the general 
account.Each such submission shall include the following 
certificationstatement by the CAIR authorized account representative or 
anyalternate CAIR authorized account representative: ``I amauthorized to 
make this submission on behalf of the persons having anownership 
interest with respect to the CAIR NOX OzoneSeason allowances 
held in the general account. I certify under penaltyof law that I have 
personally examined, and am familiar with, thestatements and information 
submitted in this document and all itsattachments. Based on my inquiry 
of those individuals with primaryresponsibility for obtaining the 
information, I certify that thestatements and information are to the 
best of my knowledge and belieftrue, accurate, and complete. I am aware 
that there are significantpenalties for submitting false statements and 
information or omittingrequired statements and information, including 
the possibility of fineor imprisonment.''
    (iii) The Administrator will accept or act on a submissionconcerning 
the general account only if the submission has been made,signed, and 
certified in accordance with paragraph (b)(2)(ii) of thissection.
    (3) Changing CAIR authorized account representative andalternate 
CAIR authorized account representative; changes in personswith ownership 
interest. (i) The CAIR authorized accountrepresentative for a general 
account may be changed at any time uponreceipt by the Administrator of a 
superseding complete application fora general account under paragraph 
(b)(1) of this section.Notwithstanding any such change, all 
representations, actions,inactions, and submissions by the previous CAIR 
authorized accountrepresentative before the time and date when the 
Administratorreceives the superseding application for a general account 
shall bebinding on the new CAIR authorized account representative and 
thepersons with an ownership interest with respect to the 
CAIRNOX Ozone Season allowances in the general account.
    (ii) The alternate CAIR authorized account representative for 
ageneral account may be changed at any time upon receipt by 
theAdministrator of a superseding complete application for a 
generalaccount under paragraph (b)(1) of this section. Notwithstanding 
anysuch change, all representations, actions, inactions, and 
submissionsby the previous alternate CAIR authorized account 
representativebefore the time and date when the Administrator receives 
thesuperseding application for a general account shall be binding on 
thenew alternate CAIR authorized account representative and the 
personswith an ownership interest with respect to the CAIR 
NOXOzone Season allowances in the general account.
    (iii)(A) In the event a person having an ownership interest 
withrespect to CAIR NOX Ozone Season allowances in the 
generalaccount is not included in the list of such persons in the 
applicationfor a general account, such person shall be deemed to be 
subject toand bound by the application for a general account, 
therepresentation, actions, inactions, and submissions of the 
CAIRauthorized account representative and any alternate CAIR 
authorizedaccount representative of the account, and the decisions and 
orders ofthe Administrator or a court, as if the person were included in 
suchlist.
    (B) Within 30 days following any change in the persons having 
anownership interest with respect to CAIR NOX Ozone 
Seasonallowances in the general account, including the addition of a 
newperson, the CAIR authorized account representative or any 
alternateCAIR authorized account representative shall submit a revision 
to theapplication for a general account amending the list of persons 
havingan ownership interest with respect to the CAIR

[[Page 1007]]

NOXOzone Season allowances in the general account to include 
the change.
    (4) Objections concerning CAIR authorized accountrepresentative and 
alternate CAIR authorized accountrepresentative. (i) Once a complete 
application for a generalaccount under paragraph (b)(1) of this section 
has been submitted andreceived, the Administrator will rely on the 
application unless anduntil a superseding complete application for a 
general account underparagraph (b)(1) of this section is received by the 
Administrator.
    (ii) Except as provided in paragraph (b)(3)(i) or (ii) of 
thissection, no objection or other communication submitted to 
theAdministrator concerning the authorization, or any 
representation,action, inaction, or submission of the CAIR authorized 
accountrepresentative or any alternate CAIR authorized account 
representativefor a general account shall affect any representation, 
action,inaction, or submission of the CAIR authorized account 
representativeor any alternate CAIR authorized account representative or 
thefinality of any decision or order by the Administrator under the 
CAIRNOX Ozone Season Trading Program.
    (iii) The Administrator will not adjudicate any private legaldispute 
concerning the authorization or any representation, action,inaction, or 
submission of the CAIR authorized account representativeor any alternate 
CAIR authorized account representative for a generalaccount, including 
private legal disputes concerning the proceeds ofCAIR NOX 
Ozone Season allowance transfers.
    (5) Delegation by CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) A 
CAIRauthorized account representative may delegate, to one or more 
naturalpersons, his or her authority to make an electronic submission to 
theAdministrator provided for or required under subparts FFFF and GGGG 
ofthis part.
    (ii) An alternate CAIR authorized account representative 
maydelegate, to one or more natural persons, his or her authority to 
makean electronic submission to the Administrator provided for or 
requiredunder subparts FFFF and GGGG of this part.
    (iii) In order to delegate authority to make an electronicsubmission 
to the Administrator in accordance with paragraph (b)(5)(i)or (ii) of 
this section, the CAIR authorized account representative oralternate 
CAIR authorized account representative, as appropriate, mustsubmit to 
the Administrator a notice of delegation, in a formatprescribed by the 
Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of such CAIR authorized 
accountrepresentative or alternate CAIR authorized account 
representative;
    (B) The name, address, e-mail address, telephone number, 
andfacsimile transmission number (if any) of each such natural 
person(referred to as an ``agent'');
    (C) For each such natural person, a list of the type or types 
ofelectronic submissions under paragraph (b)(5)(i) or (ii) of 
thissection for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: ``I agree that any electronic submission to 
theAdministrator that is by an agent identified in this notice 
ofdelegation and of a type listed for such agent in this notice 
ofdelegation and that is made when I am a CAIR authorized 
accountrepresentative or alternate CAIR authorized representative, 
asappropriate, and before this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 97.351(b)(5)(iv) shall 
bedeemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative: Until this notice of delegation is superseded 
byanother notice of delegation under 40 CFR 97.351(b)(5)(iv), I agree 
tomaintain an e-mail account and to notify the Administrator 
immediatelyof any change in my e-mail address unless all delegation of 
authorityby me under 40 CFR 97.351(b)(5) is terminated.''.

[[Page 1008]]

    (iv) A notice of delegation submitted under paragraph (b)(5)(iii) of 
this section shall be effective, with regard to the CAIRauthorized 
account representative or alternate CAIR authorized 
accountrepresentative identified in such notice, upon receipt of such 
noticeby the Administrator and until receipt by the Administrator of 
asuperseding notice of delegation submitted by such CAIR 
authorizedaccount representative or alternate CAIR authorized 
accountrepresentative, as appropriate. The superseding notice of 
delegationmay replace any previously identified agent, add a new agent, 
oreliminate entirely any delegation of authority.
    (v) Any electronic submission covered by the certification 
inparagraph (b)(5)(iii)(D) of this section and made in accordance with 
anotice of delegation effective under paragraph (b)(5)(iv) of 
thissection shall be deemed to be an electronic submission by the 
CAIRdesignated representative or alternate CAIR designated 
representativesubmitting such notice of delegation.
    (c) Account identification. The Administrator will assign aunique 
identifying number to each account established under paragraph(a) or (b) 
of this section.



Sec. 97.352  Responsibilities of CAIR authorized account representative.

    Following the establishment of a CAIR NOX Ozone 
SeasonAllowance Tracking System account, all submissions to 
theAdministrator pertaining to the account, including, but not 
limitedto, submissions concerning the deduction or transfer of 
CAIRNOX Ozone Season allowances in the account, shall be 
madeonly by the CAIR authorized account representative for the account.



Sec. 97.353  Recordation of CAIR NOX Ozone Season allowanceallocations.

    (a) By September 30, 2007, the Administrator will record in theCAIR 
NOX Ozone Season sources compliance account the 
CAIRNOX Ozone Season allowances allocated for the 
CAIRNOX Ozone Season units at the source in accordance 
withSec. 97.342(a) and (b) for the control period in 2009.
    (b) By September 30, 2008, the Administrator will record in theCAIR 
NOX Ozone Season source's compliance account the 
CAIRNOX Ozone Season allowances allocated for the 
CAIRNOX Ozone Season units at the source in accordance 
withSec. 97.342(a) and (b) for the control period in 2010.
    (c) By September 30, 2009, the Administrator will record in theCAIR 
NOX Ozone Season source's compliance account the CAIROzone 
Season NOX allowances allocated for the CAIRNOX 
Ozone Season units at the source in accordance withSec. 97.342(a) and 
(b) for the control periods in 2011,2012, and 2013.
    (d) By December 1, 2010 and December 1 of each year thereafter,the 
Administrator will record in the CAIR NOX Ozone 
Seasonsource's compliance account the CAIR NOX Ozone 
Seasonallowances allocated for the CAIR NOX Ozone Season 
unitsat the source in accordance with Sec. 97.342(a) and (b) forthe 
control period in the fourth year after the year of the 
applicabledeadline for recordation under this paragraph.
    (e) By September 1, 2009 and September 1 of each year thereafter,the 
Administrator will record in the CAIR NOX Ozone 
Seasonsource's compliance account the CAIR NOX Ozone 
Seasonallowances allocated for the CAIR NOX Ozone Season 
unitsat the source in accordance with Sec. 97.342(a) and (c) forthe 
control period in the year of the applicable deadline forrecordation 
under this paragraph.
    (f) Serial numbers for allocated CAIR NOXOzone Season allowances. 
When recording the allocation of CAIRNOX Ozone Season 
allowances for a CAIR NOXOzone Season unit in a compliance 
account, the Administrator willassign each CAIR NOX Ozone 
Season allowance a uniqueidentification number that will include digits 
identifying the year ofthe control period for which the CAIR 
NOX Ozone Seasonallowance is allocated.



Sec. 97.354  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOXOzone Season 
allowances are available to be deducted for compliancewith a source's 
CAIR NOX Ozone Season emissions limitationfor a control 
period in a given calendar year only if

[[Page 1009]]

the CAIRNOX Ozone Season allowances:
    (1) Were allocated for the control period in the year or a 
prioryear; and
    (2) Are held in the compliance account as of the allowancetransfer 
deadline for the control period or are transferred into thecompliance 
account by a CAIR NOX Ozone Season allowancetransfer 
correctly submitted for recordation underSec. Sec. 97.360 and 97.361 by 
the allowance transferdeadline for the control period.
    (b) Deductions for compliance. Following the recordation, 
inaccordance with Sec. 97.361, of CAIR NOX OzoneSeason 
allowance transfers submitted for recordation in a source'scompliance 
account by the allowance transfer deadline for a controlperiod, the 
Administrator will deduct from the compliance account CAIRNOX 
Ozone Season allowances available under paragraph (a)of this section in 
order to determine whether the source meets theCAIR NOX Ozone 
Season emissions limitation for the controlperiod, as follows:
    (1) Until the amount of CAIR NOX Ozone Seasonallowances 
deducted equals the number of tons of total nitrogen oxidesemissions, 
determined in accordance with subpart HHHH of this part,from all CAIR 
NOX Ozone Season units at the source for thecontrol period; 
or
    (2) If there are insufficient CAIR NOX Ozone 
Seasonallowances to complete the deductions in paragraph (b)(1) of 
thissection, until no more CAIR NOX Ozone Season 
allowancesavailable under paragraph (a) of this section remain in the 
complianceaccount.
    (c)(1) Identification of CAIR NOX OzoneSeason allowances by serial 
number. The CAIR authorized accountrepresentative for a source's 
compliance account may request thatspecific CAIR NOX Ozone 
Season allowances, identified byserial number, in the compliance account 
be deducted for emissions orexcess emissions for a control period in 
accordance with paragraph (b)or (d) of this section. Such request shall 
be submitted to theAdministrator by the allowance transfer deadline for 
the controlperiod and include, in a format prescribed by the 
Administrator, theidentification of the CAIR NOX Ozone Season 
source and theappropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct 
CAIRNOX Ozone Season allowances under paragraph (b) or (d) 
ofthis section from the source's compliance account, in the absence ofan 
identification or in the case of a partial identification of 
CAIRNOX Ozone Season allowances by serial number 
underparagraph (c)(1) of this section, on a first-in, first-out 
(FIFO)accounting basis in the following order:
    (i) Any CAIR NOX Ozone Season allowances that 
wereallocated to the units at the source, in the order of recordation; 
andthen
    (ii) Any CAIR NOX Ozone Season allowances that 
wereallocated to any entity and transferred and recorded in the 
complianceaccount pursuant to subpart GGGG of this part, in the order 
ofrecordation.
    (d) Deductions for excess emissions. (1) After making thedeductions 
for compliance under paragraph (b) of this section for acontrol period 
in a calendar year in which the CAIR NOXOzone Season source 
has excess emissions, the Administrator willdeduct from the source's 
compliance account an amount of CAIRNOX Ozone Season 
allowances, allocated for the controlperiod in the immediately following 
calendar year, equal to 3 timesthe number of tons of the source's excess 
emissions.
    (2) Any allowance deduction required under paragraph (d)(1) ofthis 
section shall not affect the liability of the owners andoperators of the 
CAIR NOX Ozone Season source or the CAIRNOX Ozone 
Season units at the source for any fine,penalty, or assessment, or their 
obligation to comply with any otherremedy, for the same violations, as 
ordered under the Clean Air Act orapplicable State law.
    (e) Recordation of deductions. The Administrator will recordin the 
appropriate compliance account all deductions from such anaccount under 
paragraphs (b) and (d) of this section and subpart IIII.
    (f) Administrator(s action on submissions. (1) TheAdministrator may 
review and conduct independent audits concerning anysubmission under the

[[Page 1010]]

CAIR NOX Ozone Season TradingProgram and make appropriate 
adjustments of the information in thesubmissions.
    (2) The Administrator may deduct CAIR NOX Ozone 
Seasonallowances from or transfer CAIR NOX Ozone 
Seasonallowances to a source's compliance account based on the 
informationin the submissions, as adjusted under paragraph (f)(1) of 
thissection, and record such deductions and transfers.



Sec. 97.355  Banking.

    (a) CAIR NOX Ozone Season allowances may be banked 
forfuture use or transfer in a compliance account or a general account 
inaccordance with paragraph (b) of this section.
    (b) Any CAIR NOX Ozone Season allowance that is heldin a 
compliance account or a general account will remain in suchaccount 
unless and until the CAIR NOX Ozone Seasonallowance is 
deducted or transferred under Sec. 97.342,Sec. 97.354, Sec. 97.356, 
or subpart GGGG or IIIIof this part.



Sec. 97.356  Account error.

    The Administrator may, at his or her sole discretion and on his 
orher own motion, correct any error in any CAIR NOX 
OzoneSeason Allowance Tracking System account. Within 10 business days 
ofmaking such correction, the Administrator will notify the 
CAIRauthorized account representative for the account.



Sec. 97.357  Closing of general accounts.

    (a) The CAIR authorized account representative of a generalaccount 
may submit to the Administrator a request to close theaccount, which 
shall include a correctly submitted allowance transferunder Sec. Sec. 
97.360 and 97.361 for any CAIRNOX Ozone Season allowances in 
the account to one or moreother CAIR NOX Ozone Season 
Allowance Tracking Systemaccounts.
    (b) If a general account has no allowance transfers in or out ofthe 
account for a 12-month period or longer and does not contain anyCAIR 
NOX Ozone Season allowances, the Administrator maynotify the 
CAIR authorized account representative for the account thatthe account 
will be closed following 20 business days after the noticeis sent. The 
account will be closed after the 20-day period unless,before the end of 
the 20-day period, the Administrator receives acorrectly submitted 
transfer of CAIR NOX Ozone Seasonallowances into the account 
under Sec. Sec. 97.360and 97.361 or a statement submitted by the CAIR 
authorized accountrepresentative demonstrating to the satisfaction of 
the Administratorgood cause as to why the account should not be closed.



          Subpart GGGG_CAIR NOX Ozone Season AllowanceTransfers



Sec. 97.360  Submission of CAIR NOX Ozone Season allowancetransfers.

    A CAIR authorized account representative seeking recordation of 
aCAIR NOX Ozone Season allowance transfer shall submit 
thetransfer to the Administrator. To be considered correctly 
submitted,the CAIR NOX Ozone Season allowance transfer shall 
includethe following elements, in a format specified by the 
Administrator:
    (a) The account numbers for both the transferor and 
transfereeaccounts;
    (b) The serial number of each CAIR NOX Ozone 
Seasonallowance that is in the transferor account and is to be 
transferred;and
    (c) The name and signature of the CAIR authorized 
accountrepresentative of the transferor account and the date signed.



Sec. 97.361  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) 
ofthis section) of receiving a CAIR NOX Ozone Seasonallowance 
transfer, the Administrator will record a CAIRNOX Ozone 
Season allowance transfer by moving each CAIRNOX Ozone Season 
allowance from the transferor account tothe transferee account as 
specified by the request, provided that:
    (1) The transfer is correctly submitted underSec. 97.360; and
    (2) The transferor account includes each CAIR NOXOzone 
Season allowance identified by serial number in the transfer.
    (b) A CAIR NOX Ozone Season allowance transfer that 
issubmitted for recordation after the allowance transfer deadline for 
acontrol period and that includes any CAIR NOX Ozone Season

[[Page 1011]]

allowances allocated for any control period before suchallowance 
transfer deadline will not be recorded until after theAdministrator 
completes the deductions under Sec. 97.354 forthe control period 
immediately before such allowance transferdeadline.
    (c) Where a CAIR NOX Ozone Season allowance 
transfersubmitted for recordation fails to meet the requirements of 
paragraph(a) of this section, the Administrator will not record such 
transfer.



Sec. 97.362  Notification.

    (a) Notification of recordation. Within 5 business days 
ofrecordation of a CAIR NOX Ozone Season allowance 
transferunder Sec. 97.361, the Administrator will notify the 
CAIRauthorized account representatives of both the transferor 
andtransferee accounts.
    (b) Notification of non-recordation. Within 10 business daysof 
receipt of a CAIR NOX Ozone Season allowance transferthat 
fails to meet the requirements of Sec. 97.361(a), theAdministrator will 
notify the CAIR authorized account representativesof both accounts 
subject to the transfer of:
    (1) A decision not to record the transfer, and
    (2) The reasons for such non-recordation.
    (c) Nothing in this section shall preclude the submission of aCAIR 
NOX Ozone Season allowance transfer for recordationfollowing 
notification of non-recordation.



                  Subpart HHHH_Monitoring and Reporting



Sec. 97.370  General requirements.

    The owners and operators, and to the extent applicable, the 
CAIRdesignated representative, of a CAIR NOX Ozone 
Seasonunit, shall comply with the monitoring, recordkeeping, and 
reportingrequirements as provided in this subpart and in subpart H of 
part 75of this chapter. For purposes of complying with such 
requirements, thedefinitions in Sec. 97.302 and in Sec. 72.2 ofthis 
chapter shall apply, and the terms ``affected unit,''``designated 
representative,'' and ``continuousemission monitoring system'' (or 
``CEMS'') in part75 of this chapter shall be deemed to refer to the 
terms ``CAIRNOX Ozone Season unit,'' ``CAIR 
designatedrepresentative,'' and ``continuous emission monitoringsystem'' 
(or ``CEMS'') respectively, as defined inSec. 97.302. The owner or 
operator of a unit that is not aCAIR NOX Ozone Season unit 
but that is monitored underSec. 75.72(b)(2)(ii) of this chapter shall 
comply with thesame monitoring, recordkeeping, and reporting 
requirements as a CAIRNOX Ozone Season unit.
    (a) Requirements for installation, certification, and 
dataaccounting. The owner or operator of each CAIR NOXOzone 
Season unit shall:
    (1) Install all monitoring systems required under this subpart 
formonitoring NOX mass emissions and individual unit 
heatinput (including all systems required to monitor 
NOXemission rate, NOX concentration, stack gas 
moisturecontent, stack gas flow rate, CO2 or 
O2concentration, and fuel flow rate, as applicable, in 
accordance withSec. Sec. 75.71 and 75.72 of this chapter);
    (2) Successfully complete all certification tests required 
underSec. 97.371 and meet all other requirements of this subpartand 
part 75 of this chapter applicable to the monitoring systems 
underparagraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from themonitoring 
systems under paragraph (a)(1) of this section.
    (b) Compliance deadlines. Except as provided in paragraph(e) of this 
section, the owner or operator shall meet the monitoringsystem 
certification and other requirements of paragraphs (a)(1) and(2) of this 
section on or before the following dates. The owner oroperator shall 
record, report, and quality-assure the data from themonitoring systems 
under paragraph (a)(1) of this section on and afterthe following dates.
    (1) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation before July 1, 2007,by May 1, 
2008.
    (2) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation on or after July 1,2007 and 
that reports on an annual basis underSec. 97.374(d), by the later of 
the following dates:

[[Page 1012]]

    (i) 90 unit operating days or 180 calendar days, whicheveroccurs 
first, after the date on which the unit commences commercialoperation; 
or
    (ii) May 1, 2008.
    (3) For the owner or operator of a CAIR NOX OzoneSeason 
unit that commences commercial operation on or after July 1,2007 and 
that reports on a control period basis underSec. 97.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which the unit commences 
commercialoperation; or
    (ii) If the compliance date under paragraph (b)(3)(i) of thissection 
is not during a control period, May 1 immediately followingthe 
compliance date under paragraph (b)(3)(i) of this section.
    (4) For the owner or operator of a CAIR NOX OzoneSeason 
unit for which construction of a new stack or flue orinstallation of 
add-on NOX emission controls is completedafter the applicable 
deadline under paragraph (b)(1), (2), (6), or (7)of this section and 
that reports on an annual basis underSec. 97.374(d), by 90 unit 
operating days or 180 calendardays, whichever occurs first, after the 
date on which emissions firstexit to the atmosphere through the new 
stack or flue or add-onNOX emissions controls.
    (5) For the owner or operator of a CAIR NOX OzoneSeason 
unit for which construction of a new stack or flue orinstallation of 
add-on NOX emission controls is completedafter the applicable 
deadline under paragraph (b)(1), (3), (6), or (7)of this section and 
that reports on a control period basis underSec. 97.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever 
occursfirst, after the date on which emissions first exit to the 
atmospherethrough the new stack or flue or add-on NOX 
emissionscontrols; or
    (ii) If the compliance date under paragraph (b)(5)(i) of thissection 
is not during a control period, May 1 immediately followingthe 
compliance date under paragraph (b)(5)(i) of this section.
    (6) Notwithstanding the dates in paragraphs (b)(1), (2), and (3)of 
this section, for the owner or operator of a unit for which a 
CAIRNOX Ozone Season opt-in permit application is 
submittedand not withdrawn and a CAIR opt-in permit is not yet issued or 
deniedunder subpart IIII of this part, by the date specified inSec. 
97.384(b).
    (7) Notwithstanding the dates in paragraphs (b)(1), (2), and (3)of 
this section, for the owner or operator of a CAIR NOXOzone 
Season opt-in unit under subpart IIII of this part, by the dateon which 
the CAIR NOX Ozone Season opt-in unit enters theCAIR 
NOX Ozone Season Trading Program as provided inSec. 
97.384(g).
    (c) Reporting data. The owner or operator of a CAIRNOX 
Ozone Season unit that does not meet the applicablecompliance date set 
forth in paragraph (b) of this section for anymonitoring system under 
paragraph (a)(1) of this section shall, foreach such monitoring system, 
determine, record, and report maximumpotential (or, as appropriate, 
minimum potential) values forNOX concentration, 
NOX emission rate, stackgas flow rate, stack gas moisture 
content, fuel flow rate, and anyother parameters required to determine 
NOX mass emissionsand heat input in accordance with Sec. 
75.31(b)(2) or (c)(3)of this chapter, section 2.4 of appendix D to part 
75 of this chapter,or section 2.5 of appendix E to part 75 of this 
chapter, asapplicable.
    (d) Prohibitions. (1) No owner or operator of a CAIRNOX 
Ozone Season unit shall use any alternative monitoringsystem, 
alternative reference method, or any other alternative to anyrequirement 
of this subpart without having obtained prior writtenapproval in 
accordance with Sec. 97.375.
    (2) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall operate the unit so as to discharge, or allow to bedischarged, 
NOX emissions to the atmosphere withoutaccounting for all 
such emissions in accordance with the applicableprovisions of this 
subpart and part 75 of this chapter.
    (3) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall disrupt the continuous emission monitoring system, anyportion 
thereof, or any other approved emission monitoring

[[Page 1013]]

method, and thereby avoid monitoring and recordingNOX mass 
emissions discharged into the atmosphere or heatinput, except for 
periods of recertification or periods whencalibration, quality assurance 
testing, or maintenance is performed inaccordance with the applicable 
provisions of this subpart and part 75of this chapter.
    (4) No owner or operator of a CAIR NOX Ozone Seasonunit 
shall retire or permanently discontinue use of the continuousemission 
monitoring system, any component thereof, or any otherapproved 
monitoring system under this subpart, except under any one ofthe 
following circumstances:
    (i) During the period that the unit is covered by an exemptionunder 
Sec. 97.305 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unitwith 
another certified monitoring system approved, in accordance withthe 
applicable provisions of this subpart and part 75 of this chapter,by the 
Administrator for use at that unit that provides emission datafor the 
same pollutant or parameter as the retired or discontinuedmonitoring 
system; or
    (iii) The CAIR designated representative submits notification ofthe 
date of certification testing of a replacement monitoring systemfor the 
retired or discontinued monitoring system in accordance withSec. 
97.371(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a 
CAIRNOX Ozone Season unit is subject to the 
applicableprovisions of part 75 of this chapter concerning units in 
long-termcold storage.



Sec. 97.371  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR NOX Ozone Seasonunit 
shall be exempt from the initial certification requirements ofthis 
section for a monitoring system under Sec. 97.370(a)(1)if the following 
conditions are met:
    (1) The monitoring system has been previously certified inaccordance 
with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-controlrequirements 
of Sec. 75.21 of this chapter and appendix B,appendix D, and appendix E 
to part 75 of this chapter are fully metfor the certified monitoring 
system described in paragraph (a)(1) ofthis section.
    (b) The recertification provisions of this section shall apply toa 
monitoring system under Sec. 97.370(a)(1) exempt frominitial 
certification requirements under paragraph (a) of thissection.
    (c) If the Administrator has previously approved a petition 
underSec. 75.17(a) or (b) of this chapter for apportioning 
theNOX emission rate measured in a common stack or a 
petitionunder Sec. 75.66 of this chapter for an alternative to 
arequirement in Sec. 75.12 or Sec. 75.17 of thischapter, the CAIR 
designated representative shall resubmit thepetition to the 
Administrator under Sec. 97.375 to determinewhether the approval 
applies under the CAIR NOX OzoneSeason Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owneror 
operator of a CAIR NOX Ozone Season unit shall complywith the 
following initial certification and recertificationprocedures for a 
continuous monitoring system (i.e., acontinuous emission monitoring 
system and an excepted monitoringsystem under appendices D and E to part 
75 of this chapter) underSec. 97.370(a)(1). The owner or operator of a 
unit thatqualifies to use the low mass emissions excepted 
monitoringmethodology under Sec. 75.19 of this chapter or thatqualifies 
to use an alternative monitoring system under subpart E ofpart 75 of 
this chapter shall comply with the procedures in paragraph(e) or (f) of 
this section respectively.
    (1) Requirements for initial certification. The owner oroperator 
shall ensure that each continuous monitoring system underSec. 
97.370(a)(1) (including the automated data acquisitionand handling 
system) successfully completes all of the initialcertification testing 
required under Sec. 75.20 of thischapter by the applicable deadline in 
Sec. 97.370(b). Inaddition, whenever the owner or operator installs a 
monitoring systemto meet the requirements of this subpart in a location 
where no suchmonitoring system was previously installed, initial 
certification inaccordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner oroperator 
makes a replacement, modification, or change

[[Page 1014]]

in anycertified continuous emission monitoring system underSec. 
97.370(a)(1) that may significantly affect the abilityof the system to 
accurately measure or record NOX massemissions or heat input 
rate or to meet the quality-assurance andquality-control requirements of 
Sec. 75.21 of this chapteror appendix B to part 75 of this chapter, the 
owner or operator shallrecertify the monitoring system in accordance 
withSec. 75.20(b) of this chapter. Furthermore, whenever theowner or 
operator makes a replacement, modification, or change to theflue gas 
handling system or the unit's operation that maysignificantly change the 
stack flow or concentration profile, theowner or operator shall 
recertify each continuous emission monitoringsystem whose accuracy is 
potentially affected by the change, inaccordance with Sec. 75.20(b) of 
this chapter. Examples ofchanges to a continuous emission monitoring 
system that requirerecertification include: replacement of the analyzer, 
completereplacement of an existing continuous emission monitoring 
system, orchange in location or orientation of the sampling probe or 
site. Anyfuel flowmeter systems, and any excepted NOX 
monitoringsystem under appendix E to part 75 of this chapter, underSec. 
97.370(a)(1) are subject to the recertificationrequirements in Sec. 
75.20(g)(6) of this chapter.
    (3) Approval process for initial certification andrecertification. 
Paragraphs (d)(3)(i) through (iv) of this sectionapply to both initial 
certification and recertification of acontinuous monitoring system under 
Sec. 97.370(a)(1). Forrecertifications, replace the words 
``certification'' and``initial certification'' with the 
word``recertification'', replace the word``certified'' with the word 
``recertified,''and follow the procedures in Sec. Sec. 75.20(b)(5) and 
(g)(7) of this chapter in lieu of the procedures in paragraph 
(d)(3)(v)of this section.
    (i) Notification of certification. The CAIR designatedrepresentative 
shall submit to the appropriate EPA Regional Office andthe Administrator 
written notice of the dates of certificationtesting, in accordance with 
Sec. 97.373.
    (ii) Certification application. The CAIR designatedrepresentative 
shall submit to the Administrator a certificationapplication for each 
monitoring system. A complete certificationapplication shall include the 
information specified inSec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisionalcertification 
date for a monitoring system shall be determined inaccordance with Sec. 
75.20(a)(3) of this chapter. Aprovisionally certified monitoring system 
may be used under the CAIRNOX Ozone Season Trading Program 
for a period not toexceed 120 days after receipt by the Administrator of 
the completecertification application for the monitoring system under 
paragraph(d)(3)(ii) of this section. Data measured and recorded by 
theprovisionally certified monitoring system, in accordance with 
therequirements of part 75 of this chapter, will be considered 
validquality-assured data (retroactive to the date and time of 
provisionalcertification), provided that the Administrator does not 
invalidatethe provisional certification by issuing a notice of 
disapprovalwithin 120 days of the date of receipt of the complete 
certificationapplication by the Administrator.
    (iv) Certification application approval process. TheAdministrator 
will issue a written notice of approval or disapprovalof the 
certification application to the owner or operator within 120days of 
receipt of the complete certification application underparagraph 
(d)(3)(ii) of this section. In the event the Administratordoes not issue 
such a notice within such 120-day period, eachmonitoring system that 
meets the applicable performance requirementsof part 75 of this chapter 
and is included in the certificationapplication will be deemed certified 
for use under the CAIRNOX Ozone Season Trading Program.
    (A) Approval notice. If the certification application iscomplete and 
shows that each monitoring system meets the applicableperformance 
requirements of part 75 of this chapter, then theAdministrator will 
issue a written notice of approval of thecertification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certificationapplication 
is not complete, then the Administrator will

[[Page 1015]]

issue awritten notice of incompleteness that sets a reasonable date by 
whichthe CAIR designated representative must submit the 
additionalinformation required to complete the certification 
application. If theCAIR designated representative does not comply with 
the notice ofincompleteness by the specified date, then the 
Administrator may issuea notice of disapproval under paragraph 
(d)(3)(iv)(C) of this section.The 120-day review period shall not begin 
before receipt of a completecertification application.
    (C) Disapproval notice. If the certification applicationshows that 
any monitoring system does not meet the performancerequirements of part 
75 of this chapter or if the certificationapplication is incomplete and 
the requirement for disapproval underparagraph (d)(3)(iv)(B) of this 
section is met, then the Administratorwill issue a written notice of 
disapproval of the certificationapplication. Upon issuance of such 
notice of disapproval, theprovisional certification is invalidated by 
the Administrator and thedata measured and recorded by each uncertified 
monitoring system shallnot be considered valid quality-assured data 
beginning with the dateand hour of provisional certification (as defined 
underSec. 75.20(a)(3) of this chapter). The owner or operatorshall 
follow the procedures for loss of certification in paragraph (d)(3)(v) 
of this section for each monitoring system that is disapprovedfor 
initial certification.
    (D) Audit decertification. The Administrator may issue anotice of 
disapproval of the certification status of a monitor inaccordance with 
Sec. 97.372(b).
    (v) Procedures for loss of certification. If theAdministrator issues 
a notice of disapproval of a certificationapplication under paragraph 
(d)(3)(iv)(C) of this section or a noticeof disapproval of certification 
status under paragraph (d)(3)(iv)(D)of this section, then:
    (A) The owner or operator shall substitute the following values,for 
each disapproved monitoring system, for each hour of unitoperation 
during the period of invalid data specified underSec. 75.20(a)(4)(iii), 
Sec. 75.20(g)(7), orSec. 75.21(e) of this chapter and continuing until 
theapplicable date and hour specified under Sec. 75.20(a)(5)(i)or 
(g)(7) of this chapter:
    (1) For a disapproved NOX emission rate(i.e., 
NOX-diluent) system, the maximum potentialNOX 
emission rate, as defined in ( 72.2 of this chapter.
    (2) For a disapproved NOX pollutantconcentration monitor 
and disapproved flow monitor, respectively, themaximum potential 
concentration of NOX and the maximumpotential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 ofappendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system anddisapproved 
diluent gas monitoring system, respectively, the minimumpotential 
moisture percentage and either the maximum potentialCO2 
concentration or the minimum potential O2concentration (as 
applicable), as defined in sections 2.1.5, 2.1.3.1,and 2.1.3.2 of 
appendix A to part 75 of this chapter.
    (4) For a disapproved fuel flowmeter system, the maximumpotential 
fuel flow rate, as defined in section 2.4.2.1 of appendix Dto part 75 of 
this chapter.
    (5) For a disapproved excepted NOX monitoringsystem under 
appendix E to part 75 of this chapter, the fuel-specificmaximum 
potential NOX emission rate, as defined in ( 72.2of this 
chapter.
    (B) The CAIR designated representative shall submit a notificationof 
certification retest dates and a new certification application 
inaccordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests 
orother requirements that were failed by the monitoring system, 
asindicated in the Administrator's notice of disapproval, no later 
than30 unit operating days after the date of issuance of the notice 
ofdisapproval.
    (e) Initial certification and recertification procedures forunits 
using the low mass emission excepted methodology underSec. 75.19 of 
this chapter. The owner or operator of aunit qualified to use the low 
mass emissions (LME) exceptedmethodology under Sec. 75.19 of this 
chapter shall meet theapplicable certification and recertification 
requirements inSec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
theowner or operator of such a unit elects to certify a fuel

[[Page 1016]]

flowmeter system for heat input determination, the owner oroperator 
shall also meet the certification and recertificationrequirements in 
Sec. 75.20(g) of this chapter.
    (f) Certification/recertification procedures for 
alternativemonitoring systems. The CAIR designated representative of 
each unitfor which the owner or operator intends to use an 
alternativemonitoring system approved by the Administrator under subpart 
E ofpart 75 of this chapter shall comply with the applicable 
notificationand application procedures of Sec. 75.20(f) of this 
chapter.

[65 FR 2727, Jan 18, 2000, as amended by 71 FR 74795, Dec. 13,2006]



Sec. 97.372  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality-
assurance and quality-control requirements or data 
validationrequirements of part 75 of this chapter, data shall be 
substitutedusing the applicable missing data procedures in subpart D or 
subpart Hof, or appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of amonitoring 
system and a review of the initial certification orrecertification 
application reveal that any monitoring system shouldnot have been 
certified or recertified because it did not meet aparticular performance 
specification or other requirement underSec. 97.371 or the applicable 
provisions of part 75 of thischapter, both at the time of the initial 
certification orrecertification application submission and at the time 
of the audit,the Administrator will issue a notice of disapproval of 
thecertification status of such monitoring system. For the purposes 
ofthis paragraph, an audit shall be either a field audit or an audit 
ofany information submitted to the permitting authority or 
theAdministrator. By issuing the notice of disapproval, the 
Administratorrevokes prospectively the certification status of the 
monitoringsystem. The data measured and recorded by the monitoring 
system shallnot be considered valid quality-assured data from the date 
of issuanceof the notification of the revoked certification status until 
the dateand time that the owner or operator completes subsequently 
approvedinitial certification or recertification tests for the 
monitoringsystem. The owner or operator shall follow the applicable 
initialcertification or recertification procedures in Sec. 97.371for 
each disapproved monitoring system.



Sec. 97.373  Notifications.

    The CAIR designated representative for a CAIR NOXOzone 
Season unit shall submit written notice to the Administrator 
inaccordance with Sec. 75.61 of this chapter.



Sec. 97.374  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representativeshall 
comply with all recordkeeping and reporting requirements in thissection, 
the applicable recordkeeping and reporting requirements underSec. 75.73 
of this chapter, and the requirements ofSec. 97.310(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIRNOX 
Ozone Season unit shall comply with requirements ofSec. 75.73 (c) and 
(e) of this chapter and, for a unit forwhich a CAIR opt-in permit 
application is submitted and not withdrawnand a CAIR opt-in permit is 
not yet issued or denied under subpartIIII of this part, Sec. Sec. 
97.383 and 97.384(a).
    (c) Certification Applications. The CAIR designatedrepresentative 
shall submit an application to the Administrator within45 days after 
completing all initial certification or recertificationtests required 
under Sec. 97.371, including the informationrequired under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representativeshall 
submit quarterly reports, as follows:
    (1) If the CAIR NOX Ozone Season unit is subject to 
anAcid Rain emissions limitation or a CAIR NOX 
emissionslimitation or if the owner or operator of such unit chooses to 
reporton an annual basis under this subpart, the CAIR 
designatedrepresentative shall meet the requirements of subpart H of 
part 75 ofthis chapter (concerning monitoring of NOX mass 
emissions)for such unit for the entire year and shall report the 
NOXmass emissions data and heat input data for such unit, in 
anelectronic quarterly report in a format

[[Page 1017]]

prescribed by theAdministrator, for each calendar quarter beginning 
with:
    (i) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering May 1, 2008 through June 30, 2008;
    (ii) For a unit that commences commercial operation on or afterJuly 
1, 2007, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 97.370(b), unless thatquarter is the third or 
fourth quarter of 2007 or the first quarter of2008, in which case 
reporting shall commence in the quarter coveringMay 1, 2008 through June 
30, 2008;
    (iii) Notwithstanding paragraphs (d)(1) (i) and (ii) of thissection, 
for a unit for which a CAIR opt-in permit application issubmitted and 
not withdrawn and a CAIR opt-in permit is not yet issuedor denied under 
subpart IIII of this part, the calendar quartercorresponding to the date 
specified in Sec. 97.384(b); and
    (iv) Notwithstanding paragraphs (d)(1) (i) and (ii) of thissection, 
for a CAIR NOX Ozone Season opt-in unit undersubpart IIII of 
this part, the calendar quarter corresponding to thedate on which the 
CAIR NOX Ozone Season opt-in unit entersthe CAIR 
NOX Ozone Season Trading Program as provided inSec. 
97.384(g).
    (2) If the CAIR NOX Ozone Season unit is not subjectto an 
Acid Rain emissions limitation or a CAIR NOXemissions 
limitation, then the CAIR designated representative shalleither:
    (i) Meet the requirements of subpart H of part 75 
(concerningmonitoring of NOX mass emissions) for such unit 
for theentire year and report the NOX mass emissions data 
andheat input data for such unit in accordance with paragraph (d)(1) 
ofthis section; or
    (ii) Meet the requirements of subpart H of part 75 for the 
controlperiod (including the requirements in Sec. 75.74(c) of 
thischapter) and report NOX mass emissions data and heat 
inputdata (including the data described in Sec. 75.74(c)(6) ofthis 
chapter) for such unit only for the control period of each yearand 
report, in an electronic quarterly report in a format prescribedby the 
Administrator, for each calendar quarter beginning with:
    (A) For a unit that commences commercial operation before July 
1,2007, the calendar quarter covering May 1, 2008 through June 30, 2008;
    (B) For a unit that commences commercial operation on or afterJuly 
1, 2007, the calendar quarter corresponding to the earlier of thedate of 
provisional certification or the applicable deadline forinitial 
certification under Sec. 97.370(b), unless that dateis not during a 
control period, in which case reporting shall commencein the quarter 
that includes May 1 through June 30 of the firstcontrol period after 
such date;
    (C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) ofthis 
section, for a unit for which a CAIR opt-in permit application 
issubmitted and not withdrawn and a CAIR opt-in permit is not yet 
issuedor denied under subpart IIII of this part, the calendar 
quartercorresponding to the date specified in Sec. 97.384(b); and
    (D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) ofthis 
section, for a CAIR NOX Ozone Season opt-in unitunder subpart 
IIII of this part, the calendar quarter corresponding tothe date on 
which the CAIR NOX Ozone Season opt-in unitenters the CAIR 
NOX Ozone Season Trading Program asprovided in Sec. 
97.384(g).
    (3) The CAIR designated representative shall submit each 
quarterlyreport to the Administrator within 30 days following the end of 
thecalendar quarter covered by the report. Quarterly reports shall 
besubmitted in the manner specified in Sec. 75.73(f) of thischapter.
    (4) For CAIR NOX Ozone Season units that are alsosubject 
to an Acid Rain emissions limitation or the CAIRNOX Annual 
Trading Program, CAIR SO2 TradingProgram, or Hg Budget 
Trading Program, quarterly reports shall includethe applicable data and 
information required by subparts F through Iof part 75 of this chapter 
as applicable, in addition to theNOX mass emission data, heat 
input data, and otherinformation required by this subpart.
    (e) Compliance certification. The CAIR designatedrepresentative 
shall submit to the Administrator a compliancecertification (in a format 
prescribed by

[[Page 1018]]

the Administrator) insupport of each quarterly report based on 
reasonable inquiry of thosepersons with primary responsibility for 
ensuring that all of theunit's emissions are correctly and fully 
monitored. The certificationshall state that:
    (1) The monitoring data submitted were recorded in accordance 
withthe applicable requirements of this subpart and part 75 of 
thischapter, including the quality assurance procedures 
andspecifications;
    (2) For a unit with add-on NOX emission controls andfor 
all hours where NOX data are substituted in accordancewith 
Sec. 75.34(a)(1) of this chapter, the add-on emissioncontrols were 
operating within the range of parameters listed in thequality assurance/
quality control program under appendix B to part 75of this chapter and 
the substitute data values do not systematicallyunderestimate 
NOX emissions; and
    (3) For a unit that is reporting on a control period basis 
underparagraph (d)(2)(ii) of this section, the NOX 
emissionrate and NOX concentration values substituted for 
missingdata under subpart D of part 75 of this chapter are calculated 
usingonly values from a control period and do not 
systematicallyunderestimate NOX emissions.



Sec. 97.375  Petitions.

    The CAIR designated representative of a CAIR NOX 
OzoneSeason unit may submit a petition under Sec. 75.66 of thischapter 
to the Administrator requesting approval to apply analternative to any 
requirement of this subpart. Application of analternative to any 
requirement of this subpart is in accordance withthis subpart only to 
the extent that the petition is approved inwriting by the Administrator, 
in consultation with the permittingauthority.



             Subpart IIII_CAIR NOX Ozone Season Opt-in Units



Sec. 97.380  Applicability.

    A CAIR NOX Ozone Season opt-in unit must be a unitthat:
    (a) Is located in a State that submits, and for which 
theAdministrator approves, a State implementation plan revision 
inaccordance with Sec. 51.123(ee)(3) (i), (ii), or (iii) ofthis chapter 
establishing procedures concerning CAIR Ozone Season opt-in units;
    (b) Is not a CAIR NOX Ozone Season unit underSec. 97.304 
and is not covered by a retired unit exemptionunder Sec. 97.305 that is 
in effect;
    (c) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V 
operatingpermit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet 
themonitoring, recordkeeping, and reporting requirements of subpart 
HHHHof this part.



Sec. 97.381  General.

    (a) Except as otherwise provided in Sec. Sec. 97.301through 97.304, 
Sec. Sec. 97.306 through 97.308, andsubparts BBBB and CCCC and subparts 
FFFF through HHHH of this part, aCAIR NOX Ozone Season opt-in 
unit shall be treated as aCAIR NOX Ozone Season unit for 
purposes of applying suchsections and subparts of this part.
    (b) Solely for purposes of applying, as provided in this subpart,the 
requirements of subpart HHHH of this part to a unit for which aCAIR opt-
in permit application is submitted and not withdrawn and aCAIR opt-in 
permit is not yet issued or denied under this subpart,such unit shall be 
treated as a CAIR NOX Ozone Season unitbefore issuance of a 
CAIR opt-in permit for such unit.



Sec. 97.382  CAIR designated representative.

    Any CAIR NOX Ozone Season opt-in unit, and any unitfor 
which a CAIR opt-in permit application is submitted and notwithdrawn and 
a CAIR opt-in permit is not yet issued or denied underthis subpart, 
located at the same source as one or more CAIRNOX Ozone 
Season units shall have the same CAIR designatedrepresentative and 
alternate CAIR designated representative as suchCAIR NOX 
Ozone Season units.



Sec. 97.383  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIRdesignated 
representative of a unit meeting the requirements

[[Page 1019]]

fora CAIR NOX Ozone Season opt-in unit inSec. 97.380 may 
apply for an initial CAIR opt-in permit atany time, except as provided 
under Sec. 97.386 (f) and (g),and, in order to apply, must submit the 
following:
    (1) A complete CAIR permit application underSec. 97.322;
    (2) A certification, in a format specified by the 
permittingauthority, that the unit:
    (i) Is not a CAIR NOX Ozone Season unit underSec. 97.304 
and is not covered by a retired unit exemptionunder Sec. 97.305 that is 
in effect;
    (ii) Is not covered by a retired unit exemption underSec. 72.8 of 
this chapter that is in effect;
    (iii) Vents all of its emissions to a stack; and
    (iv) Has documented heat input for more than 876 hours during the6 
months immediately preceding submission of the CAIR permitapplication 
under Sec. 97.322;
    (3) A monitoring plan in accordance with subpart HHHH of thispart;
    (4) A complete certificate of representation underSec. 97.313 
consistent with Sec. 97.382, if noCAIR designated representative has 
been previously designated for thesource that includes the unit; and
    (5) A statement, in a format specified by the permittingauthority, 
whether the CAIR designated representative requests thatthe unit be 
allocated CAIR NOX Ozone Season allowancesunder Sec. 
97.380(b) or Sec. 97.388(c) (subject tothe conditions in Sec. Sec. 
97.384(h) and 97.386(g)), tothe extent such allocation is provided in a 
State implementation planrevision submitted in accordance with Sec. 
51.123(ee)(3)(i),(ii), or (iii) of this chapter and approved by the 
Administrator. Ifallocation under Sec. 97.388(c) is requested, this 
statementshall include a statement that the owners and operators intend 
torepower the unit before January 1, 2015 and that they will 
provide,upon request, documentation demonstrating such intent.
    (b) Duty to reapply. (1) The CAIR designated representativeof a CAIR 
NOX Ozone Season opt-in unit shall submit acomplete CAIR 
permit application under Sec. 97.322 to renewthe CAIR opt-in unit 
permit in accordance with the permittingauthority's regulations for 
title V operating permits, or thepermitting authority's regulations for 
other federally enforceablepermits if applicable, addressing permit 
renewal.
    (2) Unless the permitting authority issues a notification 
ofacceptance of withdrawal of the CAIR NOX Ozone Season opt-
in unit from the CAIR NOX Ozone Season Trading Program 
inaccordance with Sec. 97.386 or the unit becomes a CAIRNOX 
Ozone Season unit under Sec. 97.304, theCAIR NOX Ozone 
Season opt-in unit shall remain subject tothe requirements for a CAIR 
NOX Ozone Season opt-in unit,even if the CAIR designated 
representative for the CAIRNOX Ozone Season opt-in unit fails 
to submit a CAIR permitapplication that is required for renewal of the 
CAIR opt-in permitunder paragraph (b)(1) of this section.



Sec. 97.384  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permitfor 
a unit for which an initial application for a CAIR opt-in permitunder 
Sec. 97.383 is submitted in accordance with thefollowing, to the extent 
provided in a State implementation planrevision submitted in accordance 
with Sec. 51.123(ee)(3)(i),(ii), or (iii) of this chapter and approved 
by the Administrator:
    (a) Interim review of monitoring plan. The permittingauthority and 
the Administrator will determine, on an interim basis,the sufficiency of 
the monitoring plan accompanying the initialapplication for a CAIR opt-
in permit under Sec. 97.383. Amonitoring plan is sufficient, for 
purposes of interim review, if theplan appears to contain information 
demonstrating that theNOX emissions rate and heat input of 
the unit and allother applicable parameters are monitored and reported 
in accordancewith subpart HHHH of this part. A determination of 
sufficiency shallnot be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permittingauthority and 
the Administrator determine that the monitoring plan issufficient under 
paragraph (a) of this section, the owner or operatorshall monitor and 
report the NOX emissions rate and theheat input

[[Page 1020]]

of the unit and all other applicable parameters, inaccordance with 
subpart HHHH of this part, starting on the date ofcertification of the 
appropriate monitoring systems under subpart HHHHof this part and 
continuing until a CAIR opt-in permit is denied underSec. 97.384(f) or, 
if a CAIR opt-in permit is issued, thedate and time when the unit is 
withdrawn from the CAIR NOXOzone Season Trading Program in 
accordance with Sec. 97.386.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) ofthis 
section shall include the entire control period immediatelybefore the 
date on which the unit enters the CAIR NOXOzone Season 
Trading Program under Sec. 97.384(g), duringwhich period monitoring 
system availability must not be less than 90percent under subpart HHHH 
of this part and the unit must be in fullcompliance with any applicable 
State or Federal emissions oremissions-related requirements.
    (2) To the extent the NOX emissions rate and the 
heatinput of the unit are monitored and reported in accordance 
withsubpart HHHH of this part for one or more control periods, in 
additionto the control period under paragraph (b)(1)(ii) of this 
section,during which control periods monitoring system availability is 
notless than 90 percent under subpart HHHH of this part and the unit 
isin full compliance with any applicable State or Federal emissions 
oremissions-related requirements and which control periods begin notmore 
than 3 years before the unit enters the CAIR NOXOzone Season 
Trading Program under Sec. 97.384(g), suchinformation shall be used as 
provided in paragraphs (c) and (d) ofthis section.
    (c) Baseline heat input. The unit's baseline heat inputshall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's total heat input (inmmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, the averageof the 
amounts of the unit's total heat input (in mmBtu) for thecontrol periods 
under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit'sbaseline NOX 
emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat inputare 
monitored and reported for only one control period, in accordancewith 
paragraph (b)(1) of this section, the unit's NOXemissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit does not 
have add-on NOX emission controls during anysuch control 
periods, the average of the amounts of the unit'sNOX 
emissions rate (in lb/mmBtu) for the control periodsunder paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat inputare 
monitored and reported for more than one control period, inaccordance 
with paragraphs (b)(1) and (2) of this section, and theunit has add-on 
NOX emission controls during any suchcontrol periods, the 
average of the amounts of the unit'sNOX emissions rate (in 
lb/mmBtu) for such control periodsduring which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating thebaseline 
heat input and the baseline NOX emissions ratefor the unit 
under paragraphs (c) and (d) of this section and if thepermitting 
authority determines that the CAIR designatedrepresentative shows that 
the unit meets the requirements for a CAIRNOX Ozone Season 
opt-in unit in Sec. 97.380 andmeets the elements certified in Sec. 
97.383(a)(2), thepermitting authority will issue a CAIR opt-in permit. 
The permittingauthority will provide a copy of the CAIR opt-in permit to 
theAdministrator, who will then establish a compliance account for 
thesource that includes the CAIR NOX Ozone Season opt-in 
unitunless the source already has a compliance account.
    (f) Issuance of denial of CAIR opt-in permit.Notwithstanding 
paragraphs (a) through (e) of this section, if at anytime before 
issuance of a CAIR opt-in

[[Page 1021]]

permit for the unit, thepermitting authority determines that the CAIR 
designatedrepresentative fails to show that the unit meets the 
requirements fora CAIR NOX Ozone Season opt-in unit inSec. 
97.380 or meets the elements certified inSec. 97.383(a)(2), the 
permitting authority will issue adenial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR NOX Ozone SeasonTrading 
Program. A unit for which an initial CAIR opt-in permit isissued by the 
permitting authority shall become a CAIR NOXOzone Season opt-
in unit, and a CAIR NOX Ozone Seasonunit, as of the later of 
May 1, 2009 or May 1 of the first controlperiod during which such CAIR 
opt-in permit is issued.
    (h) Repowered CAIR NOX Ozone Season opt-in unit.(1) If 
CAIR designated representative requests, and the permittingauthority 
issues a CAIR opt-in permit providing for, allocation to aCAIR 
NOX Ozone Season opt-in unit of CAIR NOXOzone 
Season allowances under Sec. 97.388(c) and such unitis repowered after 
its date of entry into the CAIR NOXOzone Season Trading 
Program under paragraph (g) of this section, therepowered unit shall be 
treated as a CAIR NOX Ozone Seasonopt-in unit replacing the 
original CAIR NOX Ozone Seasonopt-in unit, as of the date of 
start-up of the repowered unit'scombustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as ofthe 
date of start-up under paragraph (h)(1) of this section, therepowered 
unit shall be deemed to have the same date of commencementof operation, 
date of commencement of commercial operation, baselineheat input, and 
baseline NOX emission rate as the originalCAIR NOX 
Ozone Season opt-in unit, and the original CAIRNOX Ozone 
Season opt-in unit shall no longer be treated asa CAIR NOX 
Ozone Season opt-in unit or a CAIRNOX Ozone Season unit.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.385  CAIR opt-in permit contents.

    (a) Each CAIR opt-in permit will contain:
    (1) All elements required for a complete CAIR permit 
applicationunder Sec. 97.322;
    (2) The certification in Sec. 97.383(a)(2);
    (3) The unit's baseline heat input under Sec. 97.384(c);
    (4) The unit's baseline NOX emission rate underSec. 
97.384(d);
    (5) A statement whether the unit is to be allocated 
CAIRNOX Ozone Season allowances under Sec. 97.388(b)or Sec. 
97.388(c) (subject to the conditions inSec. Sec. 97.384(h) and 
97.386(g));
    (6) A statement that the unit may withdraw from the 
CAIRNOX Ozone Season Trading Program only in accordance 
withSec. 97.386; and
    (7) A statement that the unit is subject to, and the owners 
andoperators of the unit must comply with, the requirements ofSec. 
97.387.
    (b) Each CAIR opt-in permit is deemed to incorporate 
automaticallythe definitions of terms under Sec. 97.302 and, 
uponrecordation by the Administrator under subpart FFFF or GGGG of 
thispart or this subpart, every allocation, transfer, or deduction of 
CAIRNOX Ozone Season allowances to or from the 
complianceaccount of the source that includes a CAIR NOX 
OzoneSeason opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a formatspecified 
by the permitting authority, in the CAIR permit for thesource where the 
CAIR NOX Ozone Season opt-in unit islocated and in a title V 
operating permit or other federallyenforceable permit for the source.



Sec. 97.386  Withdrawal from CAIR NOX Ozone Season Trading Program.

    Except as provided under paragraph (g) of this section, a 
CAIRNOX Ozone Season opt-in unit may withdraw from the 
CAIRNOX Ozone Season Trading Program, but only if 
thepermitting authority issues a notification to the CAIR 
designatedrepresentative of the CAIR NOX Ozone Season opt-in 
unit ofthe acceptance of the withdrawal of the CAIR NOX 
OzoneSeason opt-in unit in accordance with paragraph (d) of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIRNOX 
Ozone Season opt-in unit from the CAIR NOXOzone Season 
Trading Program, the CAIR designated representative ofthe CAIR 
NOX Ozone Season opt-in unit shall

[[Page 1022]]

submitto the permitting authority a request to withdraw effective as 
ofmidnight of September 30 of a specified calendar year, which date 
mustbe at least 4 years after September 30 of the year of entry into 
theCAIR NOX Ozone Season Trading Program underSec. 
97.384(g). The request must be submitted no later than90 days before the 
requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOXOzone 
Season opt-in unit covered by a request under paragraph (a) ofthis 
section may withdraw from the CAIR NOX Ozone SeasonTrading 
Program and the CAIR opt-in permit may be terminated underparagraph (e) 
of this section, the following conditions must be met:
    (1) For the control period ending on the date on which thewithdrawal 
is to be effective, the source that includes the CAIRNOX 
Ozone Season opt-in unit must meet the requirement tohold CAIR 
NOX Ozone Season allowances underSec. 97.306(c) and cannot 
have any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) 
ofthis section is met, the Administrator will deduct from the 
complianceaccount of the source that includes the CAIR NOX 
OzoneSeason opt-in unit CAIR NOX Ozone Season allowances 
equalin amount to and allocated for the same or a prior control period 
asany CAIR NOX Ozone Season allowances allocated to the 
CAIRNOX Ozone Season opt-in unit under Sec. 97.388for any 
control period for which the withdrawal is to be effective. Ifthere are 
no remaining CAIR NOX Ozone Season units at thesource, the 
Administrator will close the compliance account, and theowners and 
operators of the CAIR NOX Ozone Season opt-inunit may submit 
a CAIR NOX Ozone Season allowance transferfor any remaining 
CAIR NOX Ozone Season allowances toanother CAIR 
NOX Ozone Season Allowance Tracking System inaccordance with 
subpart GGGG of this part.
    (c) Notification. (1) After the requirements for withdrawalunder 
paragraphs (a) and (b) of this section are met (includingdeduction of 
the full amount of CAIR NOX Ozone Seasonallowances required), 
the permitting authority will issue anotification to the CAIR designated 
representative of the CAIRNOX Ozone Season opt-in unit of the 
acceptance of thewithdrawal of the CAIR NOX Ozone Season opt-
in unit as ofmidnight on September 30 of the calendar year for which the 
withdrawalwas requested.
    (2) If the requirements for withdrawal under paragraphs (a) and(b) 
of this section are not met, the permitting authority will issue 
anotification to the CAIR designated representative of the 
CAIRNOX Ozone Season opt-in unit that the CAIR 
NOXOzone Season opt-in unit's request to withdraw is denied. 
Such CAIRNOX Ozone Season opt-in unit shall continue to be a 
CAIRNOX Ozone Season opt-in unit.
    (d) Permit amendment. After the permitting authority issuesa 
notification under paragraph (c)(1) of this section that therequirements 
for withdrawal have been met, the permitting authoritywill revise the 
CAIR permit covering the CAIR NOX OzoneSeason opt-in unit to 
terminate the CAIR opt-in permit for such unitas of the effective date 
specified under paragraph (c)(1) of thissection. The unit shall continue 
to be a CAIR NOX OzoneSeason opt-in unit until the effective 
date of the termination andshall comply with all requirements under the 
CAIR NOXOzone Season Trading Program concerning any control 
periods for whichthe unit is a CAIR NOX Ozone Season opt-in 
unit, even ifsuch requirements arise or must be complied with after the 
withdrawaltakes effect.
    (e) Reapplication upon failure to meet conditions ofwithdrawal. If 
the permitting authority denies the CAIRNOX Ozone Season opt-
in unit's request to withdraw, theCAIR designated representative may 
submit another request to withdrawin accordance with paragraphs (a) and 
(b) of this section.
    (f) Ability to reapply to the CAIR NOX OzoneSeason Trading Program. 
Once a CAIR NOX Ozone Seasonopt-in unit withdraws from the 
CAIR NOX Ozone SeasonTrading Program and its CAIR opt-in 
permit is terminated under thissection, the CAIR designated 
representative may not submit anotherapplication for a CAIR opt-in 
permit under Sec. 97.383 forsuch CAIR NOX Ozone Season opt-
in unit before the datethat is 4 years after the date on which the

[[Page 1023]]

withdrawal becameeffective. Such new application for a CAIR opt-in 
permit will betreated as an initial application for a CAIR opt-in permit 
underSec. 97.384.
    (g) Inability to withdraw. Notwithstanding paragraphs (a)through (f) 
of this section, a CAIR NOX Ozone Season opt-in unit shall 
not be eligible to withdraw from the CAIRNOX Ozone Season 
Trading Program if the CAIR designatedrepresentative of the CAIR 
NOX Ozone Season opt-in unitrequests, and the permitting 
authority issues a CAIR opt-in permitproviding for, allocation to the 
CAIR NOX Ozone Seasonopt-in unit of CAIR NOX Ozone 
Season allowances underSec. 97.388(c).



Sec. 97.387  Change in regulatory status.

    (a) Notification. If a CAIR NOX Ozone Seasonopt-in unit 
becomes a CAIR NOX Ozone Season unit underSec. 97.304, then 
the CAIR designated representative shallnotify in writing the permitting 
authority and the Administrator ofsuch change in the CAIR NOX 
Ozone Season opt-in unit'sregulatory status, within 30 days of such 
change.
    (b) Permitting authority's and Administrator's actions. (1)If a CAIR 
NOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 97.304, thepermitting authority will 
revise the CAIR NOX Ozone Seasonopt-in unit's CAIR opt-in 
permit to meet the requirements of a CAIRpermit under Sec. 97.323, and 
remove the CAIR opt-in permitprovisions, as of the date on which the 
CAIR NOX OzoneSeason opt-in unit becomes a CAIR 
NOX Ozone Season unitunder Sec. 97.304.
    (2)(i) The Administrator will deduct from the compliance accountof 
the source that includes the CAIR NOX Ozone Season opt-in 
unit that becomes a CAIR NOX Ozone Season unit underSec. 
97.304, CAIR NOX Ozone Season allowancesequal in amount to 
and allocated for the same or a prior controlperiod as:
    (A) Any CAIR NOX Ozone Season allowances allocated tothe 
CAIR NOX Ozone Season opt-in unit underSec. 97.388 for any 
control period after the date on whichthe CAIR NOX Ozone 
Season opt-in unit becomes a CAIRNOX Ozone Season unit under 
Sec. 97.304; and
    (B) If the date on which the CAIR NOX Ozone Seasonopt-in 
unit becomes a CAIR NOX Ozone Season unit underSec. 97.304 
is not September 30, the CAIR NOXOzone Season allowances 
allocated to the CAIR NOX OzoneSeason opt-in unit under Sec. 
97.388 for the control periodthat includes the date on which the CAIR 
NOX Ozone Seasonopt-in unit becomes a CAIR NOX 
Ozone Season unit underSec. 97.304, multiplied by the ratio of the 
number of days,in the control period, starting with the date on which 
the CAIRNOX Ozone Season opt-in unit becomes a 
CAIRNOX Ozone Season unit under Sec. 97.304 dividedby the 
total number of days in the control period and rounded to thenearest 
whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that 
thecompliance account of the source that includes the CAIRNOX 
Ozone Season opt-in unit that becomes a CAIRNOX Ozone Season 
unit under Sec. 97.304 containsthe CAIR NOX Ozone Season 
allowances necessary forcompletion of the deduction under paragraph 
(b)(2)(i) of this section.
    (3)(i) For every control period after the date on which the 
CAIRNOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 97.304, theCAIR NOX Ozone 
Season opt-in unit will be allocated CAIRNOX Ozone Season 
allowances under Sec. 97.342.
    (ii) If the date on which the CAIR NOX Ozone Seasonopt-in 
unit becomes a CAIR NOX Ozone Season unit underSec. 97.304 
is not September 30, the following amount ofCAIR NOX Ozone 
Season allowances will be allocated to theCAIR NOX Ozone 
Season opt-in unit (as a CAIRNOX Ozone Season unit) under 
Sec. 97.342 for thecontrol period that includes the date on which the 
CAIRNOX Ozone Season opt-in unit becomes a CAIRNOX 
Ozone Season unit under Sec. 97.304:
    (A) The amount of CAIR NOX Ozone Season 
allowancesotherwise allocated to the CAIR NOX Ozone Season 
opt-inunit (as a CAIR NOX Ozone Season unit) underSec. 
97.342 for the control period multiplied by;
    (B) The ratio of the number of days, in the control period,starting 
with the date on which the CAIR NOX Ozone Seasonopt-in unit 
becomes a CAIR NOX Ozone Season unit underSec. 97.304,

[[Page 1024]]

divided by the total number of days inthe control period; and
    (C) Rounded to the nearest whole allowance as appropriate.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec.13, 2006]



Sec. 97.388  CAIR NOX Ozone Season allowance allocations to CAIRNOX Ozone Season opt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit isissued 
under Sec. 97.384(e), the permitting authority willallocate CAIR 
NOX Ozone Season allowances to the CAIRNOX Ozone 
Season opt-in unit, and submit to theAdministrator the allocation for 
the control period in which a CAIRNOX Ozone Season opt-in 
unit enters the CAIRNOX Ozone Season Trading Program 
underSec. 97.384(g), in accordance with paragraph (b) or (c) ofthis 
section.
    (2) By no later than July 31 of the control period after thecontrol 
period in which a CAIR NOX Ozone Season opt-inunit enters the 
CAIR NOX Ozone Season Trading Programunder Sec. 97.384(g) 
and July 31 of each year thereafter,the permitting authority will 
allocate CAIR NOX OzoneSeason allowances to the CAIR 
NOX Ozone Season opt-inunit, and submit to the Administrator 
the allocation for the controlperiod that includes such submission 
deadline and in which the unit isa CAIR NOX Ozone Season opt-
in unit, in accordance withparagraph (b) or (c) of this section.
    (b) Calculation of allocation. For each control period forwhich a 
CAIR NOX Ozone Season opt-in unit is to beallocated CAIR 
NOX Ozone Season allowances, the permittingauthority will 
allocate in accordance with the following procedures,if provided in a 
State implementation plan revision submitted inaccordance with Sec. 
51.123(ee)(3)(i), (ii), or (iii) ofthis chapter and approved by the 
Administrator:
    (1) The heat input (in mmBtu) used for calculating the 
CAIRNOX Ozone Season allowance allocation will be the 
lesserof:
    (i) The CAIR NOX Ozone Season opt-in unit's baselineheat 
input determined under Sec. 97.384(c); or
    (ii) The CAIR NOX Ozone Season opt-in unit's heatinput, 
as determined in accordance with subpart HHHH of this part, forthe 
immediately prior control period, except when the allocation isbeing 
calculated for the control period in which the CAIRNOX Ozone 
Season opt-in unit enters the CAIRNOX Ozone Season Trading 
Program underSec. 97.384(g).
    (2) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX Ozone Season allowance 
allocationswill be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 97.384(d) and multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period for which 
CAIRNOX Ozone Season allowances are to be allocated.
    (3) The permitting authority will allocate CAIR NOXOzone 
Season allowances to the CAIR NOX Ozone Season opt-in unit in 
an amount equaling the heat input under paragraph (b)(1) ofthis section, 
multiplied by the NOX emission rate underparagraph (b)(2) of 
this section, divided by 2,000 lb/ton, and roundedto the nearest whole 
allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the 
CAIRdesignated representative requests, and the permitting 
authorityissues a CAIR opt-in permit (based on a demonstration of the 
intent torepower stated under Sec. 97.383 (a)(5)) providing 
for,allocation to a CAIR NOX Ozone Season opt-in unit of 
CAIRNOX Ozone Season allowances under this paragraph 
(subjectto the conditions in Sec. Sec. 97.384(h) and 97.386(g)),the 
permitting authority will allocate to the CAIR NOXOzone 
Season opt-in unit as follows, if provided in a Stateimplementation plan 
revision submitted in accordance withSec. 51.123(ee)(3)(i), (ii), or 
(iii) of this chapter andapproved by the Administrator:
    (1) For each control period in 2009 through 2014 for which theCAIR 
NOX Ozone Season opt-in unit is to be allocated 
CAIRNOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating 
CAIRNOX Ozone Season

[[Page 1025]]

allowance allocations will bedetermined as described in paragraph (b)(1) 
of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating CAIR NOX Ozone Season allowance 
allocationswill be the lesser of:
    (A) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 97.384(d); or
    (B) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period in which the 
CAIRNOX Ozone Season opt-in unit enters the 
CAIRNOX Ozone Season Trading Program underSec. 97.384(g).
    (iii) The permitting authority will allocate CAIR 
NOXOzone Season allowances to the CAIR NOX Ozone 
Season opt-in unit in an amount equaling the heat input under paragraph 
(c)(1)(i)of this section, multiplied by the NOX emission rate 
underparagraph (c)(1)(ii) of this section, divided by 2,000 lb/ton, 
androunded to the nearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which theCAIR 
NOX Ozone Season opt-in unit is to be allocated 
CAIRNOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating the 
CAIRNOX Ozone Season allowance allocations will be 
determinedas described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used 
forcalculating the CAIR NOX Ozone Season allowance 
allocationwill be the lesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX Ozone Season opt-in unit's 
baselineNOX emissions rate (in lb/mmBtu) determined 
underSec. 97.384(d); or
    (C) The most stringent State or Federal NOX 
emissionslimitation applicable to the CAIR NOX Ozone Season 
opt-inunit at any time during the control period for which 
CAIRNOX Ozone Season allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR 
NOXOzone Season allowances to the CAIR NOX Ozone 
Season opt-in unit in an amount equaling the heat input under paragraph 
(c)(2)(i)of this section, multiplied by the NOX emission rate 
underparagraph (c)(2)(ii) of this section, divided by 2,000 lb/ton, 
androunded to the nearest whole allowance as appropriate.
    (d) Recordation. If provided in a State implementation planrevision 
submitted in accordance with Sec. 51.123(ee)(3)(i),(ii), or (iii) of 
this chapter and approved by the Administrator:
    (1) The Administrator will record, in the compliance account ofthe 
source that includes the CAIR NOX Ozone Season opt-inunit, 
the CAIR NOX Ozone Season allowances allocated bythe 
permitting authority to the CAIR NOX Ozone Season opt-in unit 
under paragraph (a)(1) of this section.
    (2) By September 1 of the control period in which a 
CAIRNOX Ozone Season opt-in unit enters the 
CAIRNOX Ozone Season Trading Program underSec. 97.384(g) and 
September 1 of each year thereafter, theAdministrator will record, in 
the compliance account of the sourcethat includes the CAIR 
NOX Ozone Season opt-in unit, theCAIR NOX Ozone 
Season allowances allocated by thepermitting authority to the CAIR 
NOX Ozone Season opt-inunit under paragraph (a)(2) of this 
section.



 Sec. Appendix A to Subpart IIII ofPart 97--States With Approved State 

Implementation PlanRevisions Concerning CAIR NOX Ozone Season 
                              Opt-in Units


    1. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(ee)(3) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRNOX Ozone Season opt-in units under subpart IIII of 
thispart and allocation of CAIR NOX Ozone Season allowances 
tosuch units under Sec. 97.388(b):
    Indiana
     Michigan
     North Carolina
     Ohio
     South Carolina
     Tennessee
    2. The following States have State Implementation Plan 
revisionsunder Sec. 51.123(ee)(3) of this chapter approved by 
theAdministrator and establishing procedures providing for 
CAIRNOX Ozone Season opt-in units under subpart IIII of 
thispart and allocation of CAIR NOX Ozone Season allowances 
tosuch units under Sec. 97.388(c):
    Indiana

[[Page 1026]]

     Michigan
     North Carolina
     Ohio
     South Carolina
     Tennessee

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 46394, Aug.20, 2007; 72 
FR 56920, Oct. 5, 2007; 72 FR 57215, Oct. 9, 2007; 72 FR59487, Oct. 22, 
2007; 72 FR 72263, Dec. 20, 2007; 73 FR 6041, Feb. 1,2008]



  Sec. Appendix A to Part 97--Final Section 126 Rule: EGUAllocations, 
                                2004-2007

----------------------------------------------------------------------------------------------------------------
                                                                                                  NOX allocation
           ST                          Plant                 Plant--id          Point--id            for EGUs
----------------------------------------------------------------------------------------------------------------
DC......................  BENNING........................           603  15                                   80
DC......................  BENNING........................           603  16                                  117
DE......................  CHRISTIANA SUB.................           591  11                                    5
DE......................  CHRISTIANA SUB.................           591  14                                    5
DE......................  DELAWARE CITY..................         52193  B4                                  141
DE......................  DELAWARE CITY..................         52193  ST--1                               155
DE......................  DELAWARE CITY..................         52193  ST--2                               159
DE......................  DELAWARE CITY..................         52193  ST--3                               158
DE......................  EDGE MOOR......................           593  3                                   234
DE......................  EDGE MOOR......................           593  4                                   401
DE......................  EDGE MOOR......................           593  5                                   602
DE......................  HAY ROAD.......................          7153  **3                                 184
DE......................  HAY ROAD.......................          7153  --1                                 235
DE......................  HAY ROAD.......................          7153  --2                                 207
DE......................  INDIAN RIVER...................           594  1                                   187
DE......................  INDIAN RIVER...................           594  2                                   194
DE......................  INDIAN RIVER...................           594  3                                   369
DE......................  INDIAN RIVER...................           594  4                                   729
DE......................  MCKEE RUN......................           599  3                                   119
DE......................  VAN SANT STATION...............          7318  **11                                  7
IN......................  ANDERSON.......................          7336  --ACT1                                5
IN......................  ANDERSON.......................          7336  --ACT2                                5
IN......................  CLIFTY CREEK...................           983  1                                   558
IN......................  CLIFTY CREEK...................           983  2                                   543
IN......................  CLIFTY CREEK...................           983  3                                   564
IN......................  CLIFTY CREEK...................           983  4                                   525
IN......................  CLIFTY CREEK...................           983  5                                   561
IN......................  CLIFTY CREEK...................           983  6                                   509
IN......................  CONNERSVILLE...................          1002  1                                     1
IN......................  CONNERSVILLE...................          1002  2                                     1
IN......................  GALLAGHER......................          1008  1                                   290
IN......................  GALLAGHER......................          1008  2                                   276
IN......................  GALLAGHER......................          1008  3                                   347
IN......................  GALLAGHER......................          1008  4                                   329
IN......................  NOBLESVILLE....................          1007  1                                    48
IN......................  NOBLESVILLE....................          1007  2                                    45
IN......................  NOBLESVILLE....................          1007  3                                    45
IN......................  RICHMOND.......................          7335  --RCT1                                5
IN......................  RICHMOND.......................          7335  --RCT2                                5
IN......................  TANNERS CREEK..................           988  U1                                  297
IN......................  TANNERS CREEK..................           988  U2                                  235
IN......................  TANNERS CREEK..................           988  U3                                  387
IN......................  TANNERS CREEK..................           988  U4                                  906
IN......................  WHITEWATER VALLEY..............          1040  1                                    74
IN......................  WHITEWATER VALLEY..............          1040  2                                   173
KY......................  BIG SANDY......................          1353  BSU1                                565
KY......................  BIG SANDY......................          1353  BSU2                              1,741
KY......................  CANE RUN.......................          1363  4                                   397
KY......................  CANE RUN.......................          1363  5                                   332
KY......................  CANE RUN.......................          1363  6                                   430
KY......................  COOPER.........................          1384  1                                   183
KY......................  COOPER.........................          1384  2                                   367
KY......................  DALE...........................          1385  3                                   161
KY......................  DALE...........................          1385  4                                   158
KY......................  E W BROWN......................          1355  1                                   193
KY......................  E W BROWN......................          1355  10                                   37
KY......................  E W BROWN......................          1355  2                                   317
KY......................  E W BROWN......................          1355  3                                   863
KY......................  E W BROWN......................          1355  8                                    34
KY......................  E W BROWN......................          1355  9                                    34
KY......................  E.W. BROWN.....................          1355  11                                   21

[[Page 1027]]

 
KY......................  EAST BEND......................          6018  2                                 1,413
KY......................  GHENT..........................          1356  1                                 1,232
KY......................  GHENT..........................          1356  2                                 1,081
KY......................  GHENT..........................          1356  3                                 1,104
KY......................  GHENT..........................          1356  4                                 1,132
KY......................  H L SPURLOCK...................          6041  1                                   697
KY......................  H L SPURLOCK...................          6041  2                                 1,589
KY......................  MILL CREEK.....................          1364  1                                   528
KY......................  MILL CREEK.....................          1364  2                                   600
KY......................  MILL CREEK.....................          1364  3                                   941
KY......................  MILL CREEK.....................          1364  4                                 1,096
KY......................  PADDY'S RUN....................          1366  12                                    8
KY......................  PINEVILLE......................          1360  3                                    67
KY......................  TRIMBLE COUNTY.................          6071  1                                 1,221
KY......................  TYRONE.........................          1361  1                                     3
KY......................  TYRONE.........................          1361  2                                     3
KY......................  TYRONE.........................          1361  3                                     3
KY......................  TYRONE.........................          1361  4                                     3
KY......................  TYRONE.........................          1361  5                                   117
MD......................  BRANDON SHORES.................           602  1                                 1,827
MD......................  BRANDON SHORES.................           602  2                                 1,713
MD......................  C P CRANE......................          1552  1                                   434
MD......................  C P CRANE......................          1552  2                                   463
MD......................  CHALK POINT....................          1571  --GT2                                 1
MD......................  CHALK POINT....................          1571  --GT3                                36
MD......................  CHALK POINT....................          1571  --GT4                                39
MD......................  CHALK POINT....................          1571  --GT5                                55
MD......................  CHALK POINT....................          1571  --GT6                                60
MD......................  CHALK POINT....................          1571  --SGT1                               24
MD......................  CHALK POINT....................          1571  1                                   833
MD......................  CHALK POINT....................          1571  2                                   861
MD......................  CHALK POINT....................          1571  3                                   585
MD......................  CHALK POINT....................          1571  4                                   522
MD......................  DICKERSON......................          1572  --GT2                                36
MD......................  DICKERSON......................          1572  --GT3                                66
MD......................  DICKERSON......................          1572  1                                   447
MD......................  DICKERSON......................          1572  2                                   441
MD......................  DICKERSON......................          1572  3                                   481
MD......................  GOULD STREET...................          1553  3                                    81
MD......................  HERBERT A WAGNER...............          1554  1                                   134
MD......................  HERBERT A WAGNER...............          1554  2                                   399
MD......................  HERBERT A WAGNER...............          1554  3                                   723
MD......................  HERBERT A WAGNER...............          1554  4                                   301
MD......................  MORGANTOWN.....................          1573  --GT3                                 9
MD......................  MORGANTOWN.....................          1573  --GT4                                 9
MD......................  MORGANTOWN.....................          1573  --GT5                                 9
MD......................  MORGANTOWN.....................          1573  --GT6                                 8
MD......................  MORGANTOWN.....................          1573  1                                 1,151
MD......................  MORGANTOWN.....................          1573  2                                 1,375
MD......................  PANDA BRANDYWINE...............         54832  1                                    95
MD......................  PANDA BRANDYWINE...............         54832  2                                    84
MD......................  PERRYMAN.......................          1556  **51                                 56
MD......................  PERRYMAN.......................          1556  --GT1                                 8
MD......................  PERRYMAN.......................          1556  --GT2                                 9
MD......................  PERRYMAN.......................          1556  --GT3                                 6
MD......................  PERRYMAN.......................          1556  --GT4                                10
MD......................  R P SMITH......................          1570  11                                  143
MD......................  R P SMITH......................          1570  9                                    11
MD......................  RIVERSIDE......................          1559  --GT6                                11
MD......................  RIVERSIDE......................          1559  4                                    40
MD......................  VIENNA.........................          1564  8                                   169
MD......................  WESTPORT.......................          1560  --GT5                                28
MI......................  ADA COGEN LTD..................         10819  CA--Ltd                              23
MI......................  BELLE RIVER....................          6034  1                                 1,589
MI......................  BELLE RIVER....................          6034  2                                 1,672
MI......................  DAN E KARN.....................          1702  1                                   552
MI......................  DAN E KARN.....................          1702  2                                   530
MI......................  DAN E KARN.....................          1702  3                                   288
MI......................  DAN E KARN.....................          1702  4                                   310
MI......................  ECKERT STATION.................          1831  1                                    52
MI......................  ECKERT STATION.................          1831  2                                    47
MI......................  ECKERT STATION.................          1831  3                                    65
MI......................  ECKERT STATION.................          1831  4                                   116

[[Page 1028]]

 
MI......................  ECKERT STATION.................          1831  5                                   154
MI......................  ECKERT STATION.................          1831  6                                   131
MI......................  ENDICOTT GENERATING STATION....          4259  1                                    98
MI......................  ERICKSON.......................          1832  1                                   381
MI......................  GREENWOOD......................          6035  1                                   373
MI......................  HANCOCK........................          1730  5                                     3
MI......................  HANCOCK........................          1730  6                                     3
MI......................  HARBOR BEACH...................          1731  1                                    97
MI......................  J C WEADOCK....................          1720  7                                   346
MI......................  J C WEADOCK....................          1720  8                                   342
MI......................  J R WHITING....................          1723  1                                   225
MI......................  J R WHITING....................          1723  2                                   204
MI......................  J R WHITING....................          1723  3                                   249
MI......................  JAMES DE YOUNG.................          1830  5                                    69
MI......................  MARYSVILLE.....................          1732  10                                   22
MI......................  MARYSVILLE.....................          1732  11                                   16
MI......................  MARYSVILLE.....................          1732  12                                   17
MI......................  MARYSVILLE.....................          1732  9                                    17
MI......................  MIDLAND COGENERATION VENTURE...         10745  003                                 269
MI......................  MIDLAND COGENERATION VENTURE...         10745  004                                 276
MI......................  MIDLAND COGENERATION VENTURE...         10745  005                                 271
MI......................  MIDLAND COGENERATION VENTURE...         10745  006                                 273
MI......................  MIDLAND COGENERATION VENTURE...         10745  007                                 280
MI......................  MIDLAND COGENERATION VENTURE...         10745  008                                 277
MI......................  MIDLAND COGENERATION VENTURE...         10745  009                                 273
MI......................  MIDLAND COGENERATION VENTURE...         10745  010                                 271
MI......................  MIDLAND COGENERATION VENTURE...         10745  011                                 274
MI......................  MIDLAND COGENERATION VENTURE...         10745  012                                 269
MI......................  MIDLAND COGENERATION VENTURE...         10745  013                                 275
MI......................  MIDLAND COGENERATION VENTURE...         10745  014                                 269
MI......................  MISTERSKY......................          1822  5                                    33
MI......................  MISTERSKY......................          1822  6                                   155
MI......................  MISTERSKY......................          1822  7                                    98
MI......................  MONROE.........................          1733  1                                 1,902
MI......................  MONROE.........................          1733  2                                 1,555
MI......................  MONROE.........................          1733  3                                 1,574
MI......................  MONROE.........................          1733  4                                 1,822
MI......................  RIVER ROUGE....................          1740  1                                     0
MI......................  RIVER ROUGE....................          1740  2                                   627
MI......................  RIVER ROUGE....................          1740  3                                   652
MI......................  ROUGE POWERHOUSE 1....         10272  1                                   232
MI......................  ST CLAIR.......................          1743  1                                   339
MI......................  ST CLAIR.......................          1743  2                                   304
MI......................  ST CLAIR.......................          1743  3                                   351
MI......................  ST CLAIR.......................          1743  4                                   349
MI......................  ST CLAIR.......................          1743  5                                     0
MI......................  ST CLAIR.......................          1743  6                                   646
MI......................  ST CLAIR.......................          1743  7                                   733
MI......................  TRENTON CHANNEL................          1745  16                                  132
MI......................  TRENTON CHANNEL................          1745  17                                  124
MI......................  TRENTON CHANNEL................          1745  18                                  130
MI......................  TRENTON CHANNEL................          1745  19                                  126
MI......................  TRENTON CHANNEL................          1745  9A                                  968
MI......................  WYANDOTTE......................          1866  5                                     8
MI......................  WYANDOTTE......................          1866  7                                    81
MI......................  WYANDOTTE......................          1866  8                                    36
NC......................  ASHEVILLE......................          2706  1                                   491
NC......................  ASHEVILLE......................          2706  2                                   479
NC......................  BELEWS CREEK...................          8042  1                                 2,306
NC......................  BELEWS CREEK...................          8042  2                                 2,688
NC......................  BUCK...........................          2720  5                                    59
NC......................  BUCK...........................          2720  6                                    65
NC......................  BUCK...........................          2720  7                                    69
NC......................  BUCK...........................          2720  8                                   284
NC......................  BUCK...........................          2720  9                                   300
NC......................  BUTLER WARNER GEN PL...........          1016  --1                                  40
NC......................  BUTLER WARNER GEN PL...........          1016  --2                                  40
NC......................  BUTLER WARNER GEN PL...........          1016  --3                                  40
NC......................  BUTLER WARNER GEN PL...........          1016  --6                                  42
NC......................  BUTLER WARNER GEN PL...........          1016  --7                                  40
NC......................  BUTLER WARNER GEN PL...........          1016  --8                                  40
NC......................  BUTLER WARNER GEN PL...........          1016  --9                                 103
NC......................  CAPEFEAR.......................          2708  5                                   255

[[Page 1029]]

 
NC......................  CAPE FEAR......................          2708  6                                   361
NC......................  CLIFFSIDE......................          2721  1                                    67
NC......................  CLIFFSIDE......................          2721  2                                    73
NC......................  CLIFFSIDE......................          2721  3                                    95
NC......................  CLIFFSIDE......................          2721  4                                   107
NC......................  CLIFFSIDE......................          2721  5                                 1,180
NC......................  COGENTRIX-ROCKY MOUNT..........         50468  ST--unt                             303
NC......................  COGENTRIX ELIZABETHTOWN........         10380  ST--OWN                             111
NC......................  COGENTRIX KENANSVILLE..........         10381  ST--LLE                             102
NC......................  COGENTRIX LUMBERTON............         10382  ST--TON                             111
NC......................  COGENTRIX ROXBORO..............         10379  ST--ORO                             166
NC......................  COGENTRIX SOUTHPORT............         10378  ST--ORT                             335
NC......................  DAN RIVER......................          2723  1                                   117
NC......................  DAN RIVER......................          2723  2                                   128
NC......................  DAN RIVER......................          2723  3                                   271
NC......................  G G ALLEN......................          2718  1                                   311
NC......................  G G ALLEN......................          2718  2                                   316
NC......................  G G ALLEN......................          2718  3                                   525
NC......................  G G ALLEN......................          2718  4                                   470
NC......................  G G ALLEN......................          2718  5                                   514
NC......................  L V SUTTON.....................          2713  1                                   162
NC......................  L V SUTTON.....................          2713  2                                   176
NC......................  L V SUTTON.....................          2713  3                                   717
NC......................  L V SUTTON.....................          2713  CT2B                                  2
NC......................  LEE............................          2709  1                                   129
NC......................  LEE............................          2709  2                                   142
NC......................  LEE............................          2709  3                                   414
NC......................  LEE............................          2709  CT4                                   1
NC......................  LINCOLN........................          7277  1                                    33
NC......................  LINCOLN........................          7277  10                                   31
NC......................  LINCOLN........................          7277  11                                   33
NC......................  LINCOLN........................          7277  12                                   31
NC......................  LINCOLN........................          7277  13                                   26
NC......................  LINCOLN........................          7277  14                                   26
NC......................  LINCOLN........................          7277  15                                   25
NC......................  LINCOLN........................          7277  16                                   25
NC......................  LINCOLN........................          7277  2                                    33
NC......................  LINCOLN........................          7277  3                                    31
NC......................  LINCOLN........................          7277  4                                    31
NC......................  LINCOLN........................          7277  5                                    29
NC......................  LINCOLN........................          7277  6                                    30
NC......................  LINCOLN........................          7277  7                                    24
NC......................  LINCOLN........................          7277  8                                    25
NC......................  LINCOLN........................          7277  9                                    32
NC......................  MARSHALL.......................          2727  1                                   899
NC......................  MARSHALL.......................          2727  2                                   940
NC......................  MARSHALL.......................          2727  3                                 1,588
NC......................  MARSHALL.......................          2727  4                                 1,570
NC......................  MAYO...........................          6250  1A                                  893
NC......................  MAYO...........................          6250  1B                                  875
NC......................  PANDA-ROSEMARY.................         50555  CT--ary                              62
NC......................  PANDA-ROSEMARY.................         50555  CW--ary                              47
NC......................  RIVERBEND......................          2732  10                                  266
NC......................  RIVERBEND......................          2732  7                                   193
NC......................  RIVERBEND......................          2732  8                                   200
NC......................  RIVERBEND......................          2732  9                                   253
NC......................  ROANOKE VALLEY.................         50254  1                                   440
NC......................  ROANOKE VALLEY.................         50254  2                                   140
NC......................  ROXBORO........................          2712  1                                   766
NC......................  ROXBORO........................          2712  2                                 1,426
NC......................  ROXBORO........................          2712  3A                                  792
NC......................  ROXBORO........................          2712  3B                                  785
NC......................  ROXBORO........................          2712  4A                                  778
NC......................  ROXBORO........................          2712  4B                                  733
NC......................  TOBACCOVILLE...................         50221  1                                    53
NC......................  TOBACCOVILLE...................         50221  2                                    53
NC......................  TOBACCOVILLE...................         50221  3                                    53
NC......................  TOBACCOVILLE...................         50221  4                                    53
NC......................  UNC--CHAPEL HILL...............         54276  ST--ill                              14
NC......................  W H WEATHERSPOON...............          2716  1                                    76
NC......................  W H WEATHERSPOON...............          2716  2                                    86
NC......................  W H WEATHERSPOON...............          2716  3                                   161
NC......................  W H WEATHERSPOON...............          2716  CT-1                                  4

[[Page 1030]]

 
NC......................  W H WEATHERSPOON...............          2716  CT-2                                  3
NC......................  W H WEATHERSPOON...............          2716  CT-3                                  2
NC......................  W H WEATHERSPOON...............          2716  CT-4                                  4
NJ......................  B L ENGLAND....................          2378  1                                   353
NJ......................  B L ENGLAND....................          2378  2                                   417
NJ......................  B L ENGLAND....................          2378  3                                   114
NJ......................  BAYONNE........................         50497  1                                   139
NJ......................  BAYONNE........................         50497  2                                   143
NJ......................  BAYONNE........................         50497  3                                   140
NJ......................  BERGEN.........................          2398  1101                                152
NJ......................  BERGEN.........................          2398  1201                                157
NJ......................  BERGEN.........................          2398  1301                                155
NJ......................  BERGEN.........................          2398  1401                                152
NJ......................  BURLINGTON.....................          2399  101                                  30
NJ......................  BURLINGTON.....................          2399  102                                  34
NJ......................  BURLINGTON.....................          2399  103                                  39
NJ......................  BURLINGTON.....................          2399  104                                  47
NJ......................  BURLINGTON.....................          2399  11-1                                  2
NJ......................  BURLINGTON.....................          2399  11-2                                  2
NJ......................  BURLINGTON.....................          2399  11-3                                  2
NJ......................  BURLINGTON.....................          2399  11-4                                  2
NJ......................  BURLINGTON.....................          2399  7                                    17
NJ......................  BURLINGTON.....................          2399  9-1                                   4
NJ......................  BURLINGTON.....................          2399  9-2                                   4
NJ......................  BURLINGTON.....................          2399  9-3                                   4
NJ......................  BURLINGTON.....................          2399  9-4                                   4
NJ......................  CAMDEN.........................         10751  1                                   378
NJ......................  CARLL'S CORNER STATION.........          2379  1                                     2
NJ......................  CARLL'S CORNER STATION.........          2379  2                                    16
NJ......................  CARNEYS POINT (CCLP) NUG.......         10566  ST--NUG                             527
NJ......................  CEDAR STATION..................          2380  1E&W                                  5
NJ......................  CUMBERLAND.....................          5083  --GT1                                40
NJ......................  DEEPWATER......................          2384  1                                    49
NJ......................  DEEPWATER......................          2384  4                                     5
NJ......................  DEEPWATER......................          2384  6                                    42
NJ......................  DEEPWATER......................          2384  8                                   195
NJ......................  EDISON.........................          2400  1-1A&B                                3
NJ......................  EDISON.........................          2400  1-2A&B                                3
NJ......................  EDISON.........................          2400  1-3A&B                                3
NJ......................  EDISON.........................          2400  1-4A&B                                3
NJ......................  EDISON.........................          2400  2-1A&B                                7
NJ......................  EDISON.........................          2400  2-2A&B                                7
NJ......................  EDISON.........................          2400  2-3A&B                                7
NJ......................  EDISON.........................          2400  2-4A&B                                7
NJ......................  EDISON.........................          2400  3-1A&B                                7
NJ......................  EDISON.........................          2400  3-2A&B                                7
NJ......................  EDISON.........................          2400  3-3A&B                                7
NJ......................  EDISON.........................          2400  3-4A&B                                7
NJ......................  ESSEX..........................          2401  10-1A&B                              10
NJ......................  ESSEX..........................          2401  10-2A&B                              10
NJ......................  ESSEX..........................          2401  10-3A&B                              10
NJ......................  ESSEX..........................          2401  10-4A&B                              10
NJ......................  ESSEX..........................          2401  11-1A&B                              11
NJ......................  ESSEX..........................          2401  11-2A&B                              11
NJ......................  ESSEX..........................          2401  11-3A&B                              11
NJ......................  ESSEX..........................          2401  11-4A&B                              11
NJ......................  ESSEX..........................          2401  12-1A&B                              13
NJ......................  ESSEX..........................          2401  12-2A&B                              13
NJ......................  ESSEX..........................          2401  12-3A&B                              13
NJ......................  ESSEX..........................          2401  12-4A&B                              13
NJ......................  ESSEX..........................          2401  9                                    66
NJ......................  FORKED RIVER...................          7138  --1                                  17
NJ......................  FORKED RIVER...................          7138  --2                                  17
NJ......................  GILBERT........................          2393  03                                   47
NJ......................  GILBERT........................          2393  04                                   64
NJ......................  GILBERT........................          2393  05                                   63
NJ......................  GILBERT........................          2393  06                                   61
NJ......................  GILBERT........................          2393  07                                   63
NJ......................  GILBERT........................          2393  1                                     4
NJ......................  GILBERT........................          2393  2                                     4
NJ......................  GILBERT........................          2393  CT-9                                 61
NJ......................  HUDSON.........................          2403  1                                   175
NJ......................  HUDSON.........................          2403  2                                   884

[[Page 1031]]

 
NJ......................  HUDSON.........................          2403  3                                     3
NJ......................  KEARNY.........................          2404  10                                   26
NJ......................  KEARNY.........................          2404  11                                   34
NJ......................  KEARNY.........................          2404  12-1                                  8
NJ......................  KEARNY.........................          2404  12-2                                  8
NJ......................  KEARNY.........................          2404  12-3                                  8
NJ......................  KEARNY.........................          2404  12-4                                  8
NJ......................  KEARNY.........................          2404  7                                    35
NJ......................  KEARNY.........................          2404  8                                    16
NJ......................  LINDEN.........................          2406  11                                   16
NJ......................  LINDEN.........................          2406  12                                   11
NJ......................  LINDEN.........................          2406  13                                   20
NJ......................  LINDEN.........................          2406  2                                    52
NJ......................  LINDEN.........................          2406  6                                     2
NJ......................  LINDEN.........................          2406  7                                    60
NJ......................  LINDEN.........................          2406  8                                    70
NJ......................  LINDEN COGEN...................         50006  100                                 276
NJ......................  LINDEN COGEN...................         50006  200                                 280
NJ......................  LINDEN COGEN...................         50006  300                                 274
NJ......................  LINDEN COGEN...................         50006  400                                 272
NJ......................  LINDEN COGEN...................         50006  500                                 278
NJ......................  LOGAN GENERATING PLANT.........         10043  1                                   424
NJ......................  MERCER.........................          2408  1                                   489
NJ......................  MERCER.........................          2408  2                                   558
NJ......................  MICKELTON......................          8008  1                                    28
NJ......................  MIDDLE ST......................          2382  3                                     4
NJ......................  MILFORD POWER LP...............         10616  1                                    44
NJ......................  MOBIL NUG......................          n114  CT--NUG                              40
NJ......................  NEWARK BAY COGEN...............         50385  1                                     9
NJ......................  NEWARK BAY COGEN...............         50385  2                                     9
NJ......................  NORTH JERSEY ENERGY ASSOCIATES.         10308  1                                    19
NJ......................  NORTH JERSEY ENERGY ASSOCIATES.         10308  2                                    19
NJ......................  O'BRIEN (NEWARK) COGENERATION,          50797  1                                     8
                           INC..
NJ......................  O'BRIEN (PARLIN) COGENERATION,          50799  1                                     8
                           INC..
NJ......................  O'BRIEN (PARLIN) COGENERATION,          50799  2                                     8
                           INC..
NJ......................  PEDRICKTOWN COGEN..............         10099  1                                    13
NJ......................  PRIME ENERGY LP................         50852  1                                   178
NJ......................  SALEM..........................          2410  3A&B                                  3
NJ......................  SAYREVILLE.....................          2390  07                                   40
NJ......................  SAYREVILLE.....................          2390  08                                   51
NJ......................  SAYREVILLE.....................          2390  C-1                                  16
NJ......................  SAYREVILLE.....................          2390  C-2                                  13
NJ......................  SAYREVILLE.....................          2390  C-3                                  11
NJ......................  SAYREVILLE.....................          2390  C-4                                  13
NJ......................  SEWAREN........................          2411  1                                    42
NJ......................  SEWAREN........................          2411  2                                    45
NJ......................  SEWAREN........................          2411  3                                    58
NJ......................  SEWAREN........................          2411  4                                    91
NJ......................  SEWAREN........................          2411  6                                     2
NJ......................  SHERMAN........................          7288  CT-1                                 37
NJ......................  VINELAND VCLP NUG..............         54807  GT--NUG                              40
NJ......................  WERNER.........................          2385  04                                   14
NJ......................  WERNER.........................          2385  C-1                                   7
NJ......................  WERNER.........................          2385  C-2                                   6
NJ......................  WERNER.........................          2385  C-3                                   7
NJ......................  WERNER.........................          2385  C-4                                   7
NJ......................  WEST STAT......................          6776  1                                    10
NY......................  59TH STREET....................          2503  114                                  41
NY......................  59TH STREET....................          2503  115                                  32
NY......................  74TH STREET....................          2504  120                                  70
NY......................  74TH STREET....................          2504  121                                  80
NY......................  74TH STREET....................          2504  122                                  65
NY......................  ARTHUR KILL....................          2490  20                                  524
NY......................  ARTHUR KILL....................          2490  30                                  380
NY......................  ASTORIA........................          8906  30                                  557
NY......................  ASTORIA........................          8906  40                                  505
NY......................  ASTORIA........................          8906  50                                  561
NY......................  ASTORIA........................          8906  GT2-1                                 9
NY......................  ASTORIA........................          8906  GT2-2                                 9
NY......................  ASTORIA........................          8906  GT2-3                                 9
NY......................  ASTORIA........................          8906  GT2-4                                 9
NY......................  ASTORIA........................          8906  GT3-1                                 9
NY......................  ASTORIA........................          8906  GT3-2                                 9

[[Page 1032]]

 
NY......................  ASTORIA........................          8906  GT3-3                                 9
NY......................  ASTORIA........................          8906  GT3-4                                 9
NY......................  ASTORIA........................          8906  GT4-1                                 9
NY......................  ASTORIA........................          8906  GT4-2                                 9
NY......................  ASTORIA........................          8906  GT4-3                                 9
NY......................  ASTORIA........................          8906  GT4-4                                 9
NY......................  BOWLINE POINT..................          2625  1                                   749
NY......................  BOWLINE POINT..................          2625  2                                   566
NY......................  BROOKLYN NAVY YARD.............         54914  1                                   239
NY......................  BROOKLYN NAVY YARD.............         54914  2                                   220
NY......................  CHARLES POLETTI................          2491  001                                 883
NY......................  DANSKAMMER.....................          2480  1                                    34
NY......................  DANSKAMMER.....................          2480  2                                    45
NY......................  DANSKAMMER.....................          2480  3                                   229
NY......................  DANSKAMMER.....................          2480  4                                   449
NY......................  EF BARRETT.....................          2511  10                                  285
NY......................  EF BARRETT.....................          2511  20                                  287
NY......................  EAST RIVER.....................          2493  50                                   33
NY......................  EAST RIVER.....................          2493  60                                  319
NY......................  EAST RIVER.....................          2493  70                                  113
NY......................  FAR ROCKAWAY...................          2513  40                                  138
NY......................  GLENWOOD.......................          2514  40                                  151
NY......................  GLENWOOD.......................          2514  50                                  124
NY......................  GLENWOOD.......................          2514  U00020                                1
NY......................  GLENWOOD.......................          2514  U00021                                1
NY......................  HUDSON AVENUE..................          2496  100                                 162
NY......................  LOVETT.........................          2629  3                                    74
NY......................  LOVETT.........................          2629  4                                   304
NY......................  LOVETT.........................          2629  5                                   380
NY......................  NISSEQUOGUE COGEN PARTNERS.....          4931  1                                    86
NY......................  NORTHPORT......................          2516  1                                   343
NY......................  NORTHPORT......................          2516  2                                   533
NY......................  NORTHPORT......................          2516  3                                   375
NY......................  NORTHPORT......................          2516  4                                   582
NY......................  O&R HILLBURN GT................          2628  1                                     2
NY......................  O&R SHOEMAKER GT...............          2632  1                                    10
NY......................  PORT JEFFERSON.................          2517  3                                   270
NY......................  PORT JEFFERSON.................          2517  4                                   253
NY......................  RAVENSWOOD.....................          2500  10                                  299
NY......................  RAVENSWOOD.....................          2500  20                                  363
NY......................  RAVENSWOOD.....................          2500  30                                1,360
NY......................  RAVENSWOOD.....................          2500  GT2-1                                 3
NY......................  RAVENSWOOD.....................          2500  GT2-2                                 3
NY......................  RAVENSWOOD.....................          2500  GT2-3                                 3
NY......................  RAVENSWOOD.....................          2500  GT2-4                                 3
NY......................  RAVENSWOOD.....................          2500  GT3-1                                 3
NY......................  RAVENSWOOD.....................          2500  GT3-2                                 3
NY......................  RAVENSWOOD.....................          2500  GT3-3                                 3
NY......................  RAVENSWOOD.....................          2500  GT3-4                                 3
NY......................  RICHARD M FLYNN................          7314  NA1                                 246
NY......................  RICHARD M FLYNN................          7314  NA2                                  25
NY......................  ROSETON........................          8006  1                                   479
NY......................  ROSETON........................          8006  2                                   595
NY......................  TRIGEN-NDEC....................         52056  4                                   105
NY......................  WADING RIVER...................          7146  1                                     8
NY......................  WADING RIVER...................          7146  2                                     8
NY......................  WADING RIVER...................          7146  3                                     8
NY......................  WADING RIVER...................          7146  UGT013                                1
NY......................  WATERSIDE......................          2502  61                                   84
NY......................  WATERSIDE......................          2502  62                                   91
NY......................  WATERSIDE......................          2502  80                                  208
NY......................  WATERSIDE......................          2502  90                                  208
NY......................  WEST BABYLON...................          2521  1                                     2
OH......................  ASHTABULA......................          2835  10                                   75
OH......................  ASHTABULA......................          2835  11                                   80
OH......................  ASHTABULA......................          2835  7                                   333
OH......................  ASHTABULA......................          2835  8                                    70
OH......................  ASHTABULA......................          2835  9                                    66
OH......................  AVON LAKE......................          2836  10                                  139
OH......................  AVON LAKE......................          2836  12                                1,040
OH......................  AVON LAKE......................          2836  9                                    41
OH......................  AVON LAKE......................          2836  CT10                                  3
OH......................  BAY SHORE......................          2878  1                                   208

[[Page 1033]]

 
OH......................  BAY SHORE......................          2878  2                                   229
OH......................  BAY SHORE......................          2878  3                                   213
OH......................  BAY SHORE......................          2878  4                                   330
OH......................  CARDINAL.......................          2828  1                                 1,030
OH......................  CARDINAL.......................          2828  2                                 1,083
OH......................  CARDINAL.......................          2828  3                                 1,079
OH......................  CONESVILLE.....................          2840  1                                   214
OH......................  CONESVILLE.....................          2840  2                                   203
OH......................  CONESVILLE.....................          2840  3                                   212
OH......................  CONESVILLE.....................          2840  4                                 1,119
OH......................  CONESVILLE.....................          2840  5                                   731
OH......................  CONESVILLE.....................          2840  6                                   736
OH......................  DICKS CREEK....................          2831  1                                     7
OH......................  EASTLAKE.......................          2837  1                                   214
OH......................  EASTLAKE.......................          2837  2                                   230
OH......................  EASTLAKE.......................          2837  3                                   251
OH......................  EASTLAKE.......................          2837  4                                   371
OH......................  EASTLAKE.......................          2837  5                                   974
OH......................  EASTLAKE.......................          2837  6                                     1
OH......................  EDGEWATER......................          2857  13                                   65
OH......................  EDGEWATER......................          2857  A                                     1
OH......................  EDGEWATER......................          2857  B                                     1
OH......................  FRANK M TAIT...................          2847  GT1                                  23
OH......................  FRANK M TAIT...................          2847  GT2                                  25
OH......................  GEN J M GAVIN..................          8102  1                                 2,744
OH......................  GEN J M GAVIN..................          8102  2                                 2,981
OH......................  HAMILTON.......................          2917  9                                   110
OH......................  J M STUART.....................          2850  1                                 1,054
OH......................  J M STUART.....................          2850  2                                 1,228
OH......................  J M STUART.....................          2850  3                                 1,074
OH......................  J M STUART.....................          2850  4                                 1,106
OH......................  KILLEN STATION.................          6031  2                                 1,706
OH......................  KYGER CREEK....................          2876  1                                   471
OH......................  KYGER CREEK....................          2876  2                                   471
OH......................  KYGER CREEK....................          2876  3                                   478
OH......................  KYGER CREEK....................          2876  4                                   465
OH......................  KYGER CREEK....................          2876  5                                   455
OH......................  LAKE SHORE.....................          2838  18                                  195
OH......................  MAD RIVER......................          2860  A                                     2
OH......................  MAD RIVER......................          2860  B                                     2
OH......................  MIAMI FORT.....................          2832  5-1                                  35
OH......................  MIAMI FORT.....................          2832  5-2                                  35
OH......................  MIAMI FORT.....................          2832  6                                   398
OH......................  MIAMI FORT.....................          2832  7                                 1,044
OH......................  MIAMI FORT.....................          2832  8                                 1,015
OH......................  MIAMI FORT.....................          2832  CT2                                   1
OH......................  MUSKINGUM RIVER................          2872  1                                   309
OH......................  MUSKINGUM RIVER................          2872  2                                   316
OH......................  MUSKINGUM RIVER................          2872  3                                   347
OH......................  MUSKINGUM RIVER................          2872  4                                   349
OH......................  MUSKINGUM RIVER................          2872  5                                 1,105
OH......................  NILES..........................          2861  1                                   212
OH......................  NILES..........................          2861  2                                   160
OH......................  NILES..........................          2861  A                                     2
OH......................  O H HUTCHINGS..................          2848  H-1                                  24
OH......................  O H HUTCHING...................          2848  H-2                                  37
OH......................  O H HUTCHINGS..................          2848  H-3                                  64
OH......................  O H HUTCHINGS..................          2848  H-4                                  68
OH......................  O H HUTCHINGS..................          2848  H-5                                  62
OH......................  O H HUTCHINGS..................          2848  H-6                                  69
OH......................  O H HUTCHINGS..................          2848  H-7                                   1
OH......................  PICWAY.........................          2843  9                                   141
OH......................  R E BURGER.....................          2864  1                                     0
OH......................  R E BURGER.....................          2864  2                                     0
OH......................  R E BURGER.....................          2864  3                                     0
OH......................  R E BURGER.....................          2864  4                                     0
OH......................  R E BURGER.....................          2864  5                                    14
OH......................  R E BURGER.....................          2864  6                                    13
OH......................  R E BURGER.....................          2864  7                                   337
OH......................  R E BURGER.....................          2864  8                                   274
OH......................  RICHARD GORSUCH................          7286  1                                   146
OH......................  RICHARD GORSUCH................          7286  2                                   138
OH......................  RICHARD GORSUCH................          7286  3                                   144

[[Page 1034]]

 
OH......................  RICHARD GORSUCH................          7286  4                                   146
OH......................  W H SAMMIS.....................          2866  1                                   402
OH......................  W H SAMMIS.....................          2866  2                                   418
OH......................  W H SAMMIS.....................          2866  3                                   400
OH......................  W H SAMMIS.....................          2866  4                                   415
OH......................  W H SAMMIS.....................          2866  5                                   631
OH......................  W H SAMMIS.....................          2866  6                                 1,221
OH......................  W H SAMMIS.....................          2866  7                                 1,259
OH......................  W H ZIMMER.....................          6019  1                                 2,918
OH......................  WALTER C BECKJORD..............          2830  1                                   167
OH......................  WALTER C BECKJORD..............          2830  2                                   198
OH......................  WALTER C BECKJORD..............          2830  3                                   281
OH......................  WALTER C BECKJORD..............          2830  4                                   347
OH......................  WALTER C BECKJORD..............          2830  5                                   481
OH......................  WALTER C BECKJORD..............          2830  6                                   850
OH......................  WALTER C BECKJORD..............          2830  CT1                                   3
OH......................  WALTER C BECKJORD..............          2830  CT2                                   3
OH......................  WALTER C BECKJORD..............          2830  CT3                                   4
OH......................  WALTER C BECKJORD..............          2830  CT4                                   2
OH......................  WEST LORAIN....................          2869  1A                                    0
OH......................  WEST LORAIN....................          2869  1B                                    0
OH......................  WOODSDALE......................          7158  --GT1                                30
OH......................  WOODSDALE......................          7158  --GT2                                30
OH......................  WOODSDALE......................          7158  --GT3                                39
OH......................  WOODSDALE......................          7158  --GT4                                37
OH......................  WOODSDALE......................          7158  --GT5                                40
OH......................  WOODSDALE......................          7158  --GT6                                39
PA......................  AES BEAVER VALLEY..............         10676  032                                 144
PA......................  AES BEAVER VALLEY..............         10676  033                                 131
PA......................  AES BEAVER VALLEY..............         10676  034                                 133
PA......................  AES BEAVER VALLEY..............         10676  035                                  67
PA......................  ARMSTRONG......................          3178  1                                   363
PA......................  ARMSTRONG......................          3178  2                                   383
PA......................  BRUCE MANSFIELD................          6094  1                                 1,657
PA......................  BRUCE MANSFIELD................          6094  2                                 1,672
PA......................  BRUCE MANSFIELD................          6094  3                                 1,636
PA......................  BRUNNER ISLAND.................          3140  1                                   568
PA......................  BRUNNER ISLAND.................          3140  2                                   718
PA......................  BRUNNER ISLAND.................          3140  3                                 1,539
PA......................  BRUNOT ISLAND..................          3096  2A                                    0
PA......................  BRUNOT ISLAND..................          3096  2B                                    0
PA......................  BRUNOT ISLAND..................          3096  3                                     0
PA......................  CAMBRIA COGEN..................         10641  1                                   155
PA......................  CAMBRIA COGEN..................         10641  2                                   161
PA......................  CHESWICK.......................          8226  1                                 1,119
PA......................  COLVER POWER PROJECT...........         10143  1                                   291
PA......................  CONEMAUGH......................          3118  1                                 2,167
PA......................  CONEMAUGH......................          3118  2                                 1,995
PA......................  CROMBY.........................          3159  1                                   377
PA......................  CROMBY.........................          3159  2                                   201
PA......................  DELAWARE.......................          3160  71                                   61
PA......................  DELAWARE.......................          3160  81                                   56
PA......................  EBENSBURG POWER................         10603  1                                   191
PA......................  EDDYSTONE......................          3161  1                                   565
PA......................  EDDYSTONE......................          3161  2                                   636
PA......................  EDDYSTONE......................          3161  3                                   207
PA......................  EDDYSTONE......................          3161  4                                   237
PA......................  ELRAMA.........................          3098  1                                   214
PA......................  ELRAMA.........................          3098  2                                   209
PA......................  ELRAMA.........................          3098  3                                   208
PA......................  ELRAMA.........................          3098  4                                   428
PA......................  FOSTER WHEELER MT. CARMEL......         10343  AB--NUG                             152
PA......................  GILBERTON POWER NUG............        010113  AB--NUG                             273
PA......................  GPU GENCO WAYNE................          3134  1                                     8
PA......................  HATFIELD'S FERRY...............          3179  1                                 1,155
PA......................  HATFIELD'S FERRY...............          3179  2                                 1,029
PA......................  HATFIELD'S FERRY...............          3179  3                                 1,087
PA......................  HOLTWOOD.......................          3145  17                                  246
PA......................  HOMER CITY.....................          3122  1                                 1,471
PA......................  HOMER CITY.....................          3122  2                                 1,553
PA......................  HOMER CITY.....................          3122  3                                 1,437
PA......................  HUNLOCK PWR STATION............          3176  6                                   131
PA......................  KEYSTONE.......................          3136  1                                 2,154

[[Page 1035]]

 
PA......................  KEYSTONE.......................          3136  2                                 2,133
PA......................  KIMBERLY-CLARK.................          3157  10                                  211
PA......................  MARTINS CREEK..................          3148  1                                   314
PA......................  MARTINS CREEK..................          3148  2                                   293
PA......................  MARTINS CREEK..................          3148  3                                   543
PA......................  MARTINS CREEK..................          3148  4                                   500
PA......................  MITCHELL.......................          3181  1                                    10
PA......................  MITCHELL.......................          3181  2                                     6
PA......................  MITCHELL.......................          3181  3                                     9
PA......................  MITCHELL.......................          3181  33                                  556
PA......................  MONTOUR........................          3149  1                                 1,560
PA......................  MONTOUR........................          3149  2                                 1,673
PA......................  MOUNTAIN.......................          3111  1                                     5
PA......................  MOUNTAIN.......................          3111  2                                     5
PA......................  NEW CASTLE.....................          3138  3                                   190
PA......................  NEW CASTLE.....................          3138  4                                   195
PA......................  NEW CASTLE.....................          3138  5                                   245
PA......................  NORCON POWER PARTNERS LP.......         54571  1                                   103
PA......................  NORCON POWER PARTNERS LP.......         54571  2                                   109
PA......................  NORTHAMPTION GENERATING........         50888  1                                   291
PA......................  NORTHEASTERN POWER.............         50039  .......................             188
PA......................  PANTHER CREEK..................         50776  1                                   134
PA......................  PANTHER CREEK..................         50776  2                                   130
PA......................  PECO ENERGY CROYDEN............          8012  11                                   11
PA......................  PECO ENERGY CROYDEN............          8012  12                                    9
PA......................  PECO ENERGY CROYDEN............          8012  21                                    5
PA......................  PECO ENERGY CROYDEN............          8012  22                                   11
PA......................  PECO ENERGY CROYDEN............          8012  31                                   13
PA......................  PECO ENERGY CROYDEN............          8012  32                                    6
PA......................  PECO ENERGY CROYDEN............          8012  41                                   11
PA......................  PECO ENERGY CROYDEN............          8012  42                                    9
PA......................  PECO ENERGY RICHMOND...........          3168  91                                   10
PA......................  PECO ENERGY RICHMOND...........          3168  92                                    9
PA......................  PHILLIPS POWER STATION.........          3099  3                                     0
PA......................  PHILLIPS POWER STATION.........          3099  4                                     0
PA......................  PHILLIPS POWER STATION.........          3099  5                                     0
PA......................  PHILLIPS POWER STATION.........          3099  6                                     0
PA......................  PINEY CREEK....................         54144  1                                   102
PA......................  PORTLAND.......................          3113  --5                                  48
PA......................  PORTLAND.......................          3113  1                                   266
PA......................  PORTLAND.......................          3113  2                                   412
PA......................  SCHUYLKILL.....................          3169  1                                    84
PA......................  SCHUYLKILL ENERGY RESOURCES....        880010  1                                   289
PA......................  SCHUYLKILL STATION (TURBI......         50607  AB--NUG                             701
PA......................  SCRUBGRASS GENERATING PLANT....         50974  1                                   124
PA......................  SCRUBGRASS GENERATING PLANT....         50974  2                                   123
PA......................  SEWARD.........................          3130  12                                   64
PA......................  SEWARD.........................          3130  14                                   72
PA......................  SEWARD.........................          3130  15                                  355
PA......................  SHAWVILLE......................          3131  1                                   295
PA......................  SHAWVILLE......................          3131  2                                   294
PA......................  SHAWVILLE......................          3131  3                                   380
PA......................  SHAWVILLE......................          3131  4                                   392
PA......................  SUNBURY........................          3152  1A                                  134
PA......................  SUNBURY........................          3152  1B                                  122
PA......................  SUNBURY........................          3152  2A                                  130
PA......................  SUNBURY........................          3152  2B                                  134
PA......................  SUNBURY........................          3152  3                                   263
PA......................  SUNBURY........................          3152  4                                   302
PA......................  TITUS..........................          3115  1                                   161
PA......................  TITUS..........................          3115  2                                   152
PA......................  TITUS..........................          3115  3                                   151
PA......................  TOLNA..........................          3116  1                                     3
PA......................  TOLNA..........................          3116  2                                     4
PA......................  TRIGEN ENERGY SANSOM...........        880006  1                                    12
PA......................  TRIGEN ENERGY SANSOM...........        880006  2                                    10
PA......................  TRIGEN ENERGY SANSOM...........        880006  3                                     5
PA......................  TRIGEN ENERGY SANSOM...........        880006  4                                     6
PA......................  WARREN.........................          3132  1                                    47
PA......................  WARREN.........................          3132  2                                    32
PA......................  WARREN.........................          3132  3                                    40
PA......................  WARREN.........................          3132  4                                    42
PA......................  WARREN.........................          3132  CT1                                  14

[[Page 1036]]

 
PA......................  WESTWOOD ENERGY PROPERTIE......         50611  031                                  98
PA......................  WHEELABRATOR FRACKVILLE E......         50879  GEN1                                161
PA......................  WILLIAMS GEN--HAZELTON.........         10870  HRSG                                 16
PA......................  WILLIAMS GEN--HAZELTON.........         10870  TURBN                               141
VA......................  BELLMEADE......................          7696  1                                    76
VA......................  BELLMEADE......................          7696  2                                    88
VA......................  BREMO BLUFF....................          3796  3                                   137
VA......................  BREMO BLUFF....................          3796  4                                   386
VA......................  CHESAPEAKE.....................          3803  1                                   298
VA......................  CHESAPEAKE.....................          3803  2                                   308
VA......................  CHESAPEAKE.....................          3803  3                                   370
VA......................  CHESAPEAKE.....................          3803  4                                   571
VA......................  CHESAPEAKE CORP................         10017  ST--rp.                              59
VA......................  CHESTERFIELD...................          3797  --8                                 263
VA......................  CHESTERFIELD...................          3797  3                                   232
VA......................  CHESTERFIELD...................          3797  4                                   389
VA......................  CHESTERFIELD...................          3797  5                                   769
VA......................  CHESTERFIELD...................          3797  6                                 1,348
VA......................  CHESTERFIELD...................          3797  7                                   316
VA......................  CLINCH RIVER...................          3775  1                                   548
VA......................  CLINCH RIVER...................          3775  2                                   520
VA......................  CLINCH RIVER...................          3775  3                                   575
VA......................  CLOVER.........................          7213  1                                 1,033
VA......................  CLOVER.........................          7213  2                                 1,118
VA......................  COGENTRIX--HOPEWELL............         10377  ST--ell                             327
VA......................  COGENTRIX--PORTSMOUTH..........         10071  ST--uth                             356
VA......................  COGENTRIX RICHMOND 1...........         54081  ST--d 1                             299
VA......................  COGENTRIX RICHMOND 2...........         54081  ST--d 2                             209
VA......................  COMMONWEALTH ATLANTIC LP.......         52087  GT--LP                               35
VA......................  DARBYTOWN......................          7212  --1                                  29
VA......................  DARBYTOWN......................          7212  --2                                  28
VA......................  DARBYTOWN......................          7212  --3                                  30
VA......................  DARBYTOWN......................          7212  --4                                  29
VA......................  DOSWELL 1.............         52019  CA--1                       46
VA......................  DOSWELL 1.............         52019  CT--1                       94
VA......................  DOSWELL 2.............         52019  CA--2                       46
VA......................  DOSWELL 2.............         52019  CT--2                       94
VA......................  GLEN LYN.......................          3776  51                                  101
VA......................  GLEN LYN.......................          3776  52                                  110
VA......................  GLEN LYN.......................          3776  6                                   487
VA......................  GORDONSVILLE 1.................         54844  CA--e 1                              16
VA......................  GORDONSVILLE 1.................         54844  CT--e 1                              33
VA......................  GORDONSVILLE 2.................         54844  CA--Xe 2                             17
VA......................  GORDONSVILLE 2.................         54844  CT--e 2                              34
VA......................  GRAVEL NECK....................          7032  --3                                  21
VA......................  GRAVEL NECK....................          7032  --X4                                 24
VA......................  GRAVEL NECK....................          7032  --5                                  14
VA......................  GRAVEL NECK....................          7032  --6                                  18
VA......................  HOPEWELL COGEN, INC............         10633  CT--nc.                             102
VA......................  HOPEWELL COGEN, INC............         10633  CW--nc.                              53
VA......................  LG&E-WESTMORELAND ALTAVISTA....         10773  1                                    18
VA......................  LG&E-WESTMORELAND ALTAVISTA....         10773  2                                    18
VA......................  LG&E-WESTMORELAND HOPEWELL.....         10771  1                                    17
VA......................  LG&E-WESTMORELAND HOPEWELL.....         10771  2                                    16
VA......................  LG&E-WESTMORELAND SOUTHAMPTON..         10774  1                                    23
VA......................  LG&E-WESTMORELAND SOUTHAMPTON..         10774  2                                    29
VA......................  MECKLENBURG....................         52007  ST--urg                             234
VA......................  POSSUM POINT...................          3804  3                                   221
VA......................  POSSUM POINT...................          3804  4                                   528
VA......................  POSSUM POINT...................          3804  5                                   322
VA......................  POTOMAC RIVER..................          3788  1                                   203
VA......................  POTOMAC RIVER..................          3788  2                                   139
VA......................  POTOMAC RIVER..................          3788  3                                   232
VA......................  POTOMAC RIVER..................          3788  4                                   223
VA......................  POTOMAC RIVER..................          3788  5                                   222
VA......................  SEI BIRCHWOOD..................            12  1                                   305
VA......................  TASLEY.........................          3785  10                                    6
VA......................  YORKTOWN.......................          3809  1                                   386
VA......................  YORKTOWN.......................          3809  2                                   419
VA......................  YORKTOWN.......................          3809  3                                   764
WV......................  ALBRIGHT.......................          3942  1                                    76
WV......................  ALBRIGHT.......................          3942  2                                    71
WV......................  ALBRIGHT.......................          3942  3                                   241

[[Page 1037]]

 
WV......................  FORT MARTIN....................          3943  1                                   887
WV......................  FORT MARTIN....................          3943  2                                   868
WV......................  GRANT TOWN.....................         10151  ST--own                             156
WV......................  HARRISON.......................          3944  1                                 1,385
WV......................  HARRISON.......................          3944  2                                 1,444
WV......................  HARRISON.......................          3944  3                                 1,505
WV......................  JOHN E AMOS....................          3935  1                                 1,254
WV......................  JOHN E AMOS....................          3935  2                                 1,198
WV......................  JOHN E AMOS....................          3935  3                                 1,859
WV......................  KAMMER.........................          3947  1                                   399
WV......................  KAMMER.........................          3947  2                                   418
WV......................  KAMMER.........................          3947  3                                   447
WV......................  KANAWHA RIVER..................          3936  1                                   336
WV......................  KANAWHA RIVER..................          3936  2                                   323
WV......................  MITCHELL.......................          3948  1                                 1,288
WV......................  MITCHELL.......................          3948  2                                 1,191
WV......................  MORGANTOWN ENERGY ASSOCIATES...            27  1                                    80
WV......................  MORGANTOWN ENERGY ASSOCIATES...            27  2                                    80
WV......................  MOUNTAINEER (1301).............          6264  1                                 1,952
WV......................  MT STORM.......................          3954  1                                 1,048
WV......................  MT STORM.......................          3954  2                                 1,127
WV......................  MT STORM.......................          3954  3                                 1,236
WV......................  NORTH BRANCH...................          7537  1A                                   51
WV......................  NORTH BRANCH...................          7537  1B                                   53
WV......................  PHIL SPORN.....................          3938  11                                  239
WV......................  PHIL SPORN.....................          3938  21                                  215
WV......................  PHIL SPORN.....................          3938  31                                  239
WV......................  PHIL SPORN.....................          3938  41                                  230
WV......................  PHIL SPORN.....................          3938  51                                  708
WV......................  PLEASANTS......................          6004  1                                 1,296
WV......................  PLEASANTS......................          6004  2                                 1,165
WV......................  RIVESVILLE.....................          3945  7                                    38
WV......................  RIVESVILLE.....................          3945  8                                    88
WV......................  WILLOW ISLAND..................          3946  1                                    79
WV......................  WILLOW ISLAND..................          3946  2                                   246
----------------------------------------------------------------------------------------------------------------


[6 FR 2727, Jan. 18, 2000, as amended at 66 FR 48575, Sept.21, 2001]



Sec. Appendix B to Part 97--Final Section 126Rule: Non-EGU Allocations, 
                                2004-2007

----------------------------------------------------------------------------------------------------------------
                                                                                                         NOX
    State             County                      Plant                  Plant ID       Point ID     allocation
                                                                                                     fornon-EGUs
----------------------------------------------------------------------------------------------------------------
DC...........  Washington..........  GSA CENTRAL HEATING PLANT.....  0025             003                      0
DC...........  Washington..........  GSA CENTRAL HEATING PLANT.....  0025             004                      0
DC...........  Washington..........  GSA CENTRAL HEATING PLANT.....  0025             005                      0
DC...........  Washington..........  GSA CENTRAL HEATING PLANT.....  0025             006                      0
DC...........  Washington..........  GSA WEST HEATING PLANT........  0024             003                     13
DC...........  Washington..........  GSA WEST HEATING PLANT........  0024             005                     12
DE...........  Kent................  KRAFT FOODS INC...............  0007             001                      0
DE...........  New Castle..........  MOTIVA ENTERPRISES (FORMERLY    0016             002                    102
                                      STAR ENTERPRISE,DELAWARE CITY
                                      PLANT).
DE...........  New Castle..........  MOTIVA ENTERPRISES (FORMERLY    0016             012                    118
                                      STAR ENTERPRISE,DELAWARE CITY
                                      PLANT).
KY...........  Boyd................  ASHLAND OIL INC...............  0004             061                     23
KY...........  Lawrence............  KENTUCKY POWER CO.............  0003             004                      0
MD...........  Baltimore...........  BETHLEHEM STEEL...............  0147             016                     75
MD...........  Baltimore...........  BETHLEHEM STEEL...............  0147             017                     75
MD...........  Baltimore...........  BETHLEHEM STEEL...............  0147             018                     75
MD...........  Baltimore...........  BETHLEHEM STEEL...............  0147             019                     75
MD...........  Allegany............  WESTVACO......................  0011             001                    289
MD...........  Allegany............  WESTVACO......................  0011             002                    373
MI...........  Wayne...............  DETROIT EDISON CO.............  B2810            0003                    31
MI...........  Midland.............  DOW CHEMICAL USA..............  A4033            0401                     6
MI...........  Midland.............  DOW CHEMICAL USA..............  A4033            0402                     0
MI...........  Wayne...............  DSC LTD.......................  B3680            0006                    30
MI...........  Genesee.............  GENERAL MOTORS CORP...........  A1178            0501                    63
MI...........  Genesee.............  GENERAL MOTORS CORP...........  A1178            0502                    47
MI...........  Oakland.............  GENERAL MOTORS CORP...........  B4031            0506                    22
MI...........  Genesee.............  GENERAL MOTORS CORP...........  A1178            0507                    20

[[Page 1038]]

 
MI...........  Oakland.............  GENERAL MOTORS CORP...........  B4032            0510                     4
MI...........  Kalamazoo...........  GEORGIA PACIFIC CORP..........  B4209            0005                     6
MI...........  Kalamazoo...........  JAMES RIVER PAPER CO INC......  B1678            0003                    90
MI...........  Wayne...............  MARATHON OIL COMPANY..........  A9831            0001                   109
MI...........  Allegan.............  MENASHA CORP..................  A0023            0024                    71
MI...........  Allegan.............  MENASHA CORP..................  A0023            0025                    69
MI...........  Ingham..............  MICHIGAN STATE UNIVERSITY.....  K3249            0053                   110
MI...........  Ingham..............  MICHIGAN STATE UNIVERSITY.....  K3249            0054                   118
MI...........  Ingham..............  MICHIGAN STATE UNIVERSITY.....  K3249            0055                    77
MI...........  Ingham..............  MICHIGAN STATE UNIVERSITY.....  K3249            0056                    73
MI...........  Washtenaw...........  THE REGENTS OF THE UNIVERSITY   M0675            0001                    40
                                      OFMICHIGAN.
MI...........  Washtenaw...........  THE REGENTS OF THE UNIVERSITY   M0675            0002                    37
                                      OFMICHIGAN.
MI...........  Oakland.............  WILLIAM BEAUMONT HOSPITAL.....  G5067            0010                     0
MI...........  Oakland.............  WILLIAM BEAUMONT HOSPITAL.....  G5067            0011                     0
NC...........  Haywood.............  BLUE RIDGE PAPER PRODUCTS INC.  0159             005                    129
NC...........  Haywood.............  CHAMPION INT CORP.............  0159             001                     98
NC...........  Haywood.............  CHAMPION INT CORP.............  0159             002                     88
NC...........  Haywood.............  CHAMPION INT CORP.............  0159             003                    200
NC...........  Haywood.............  CHAMPION INT CORP.............  0159             004                    176
NC...........  Halifax.............  CHAMPION INTERNATIONAL CORP.    0007             001                    340
                                      ROANOKERAP.
NC...........  Guilford............  CONE MILLS CORP--WHITE          0863             004                     50
                                      OAKPLANT.
NC...........  Cabarrus............  FIELDCREST--CANNON PLT          0006             001                     77
                                      1KANNAPOLIS.
NC...........  Columbus............  INTERNATIONAL PAPER:            0036             003                     90
                                      RIEGELWOOD.
NC...........  Columbus............  INTERNATIONAL PAPER:            0036             004                    228
                                      RIEGELWOOD.
NC...........  Martin..............  WEYERHAEUSER PAPER CO.          0069             001                    265
                                      PLYMOUTH.
NC...........  Craven..............  WEYERHAUSER COMPANY NEW BERN    0104             005                    205
                                      MILL.
NC...........  Craven..............  WEYERHAEUSER COMPANY NEW BERN   0104             006                     72
                                      MILL.
NC...........  Martin..............  WEYERHAEUSER COMPANY PLYMOUTH.  0069             009                     25
NJ...........  Middlesex...........  BALL--INCON GLASS PACKAGING...  15035            001                     46
NJ...........  Hudson..............  BEST FOODS CPC INTERNATIONAL I  10003            003                     27
NJ...........  Middlesex...........  CHEVRON U.S.A., INC...........  15023            001                     17
NJ...........  Middlesex...........  CHEVRON U.S.A., INC...........  15023            043                     55
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            001                      3
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            038                     11
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            039                     11
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            040                     11
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            064                     38
NJ...........  Gloucester..........  COASTAL EAGLE POINT OIL COMPAN  55004            123                     37
NJ...........  Middlesex...........  DEGUSSA CORPORATION-METZ DIVIS  15305            009                     15
NJ...........  Union...............  EXXON CORPORATION.............  40003            001                     57
NJ...........  Union...............  EXXON CORPORATION.............  40003            007                     22
NJ...........  Union...............  EXXON CORPORATION.............  40003            014                     98
NJ...........  Union...............  EXXON CORPORATION.............  40003            015                     14
NJ...........  Middlesex...........  HERCULES INCORPORATED.........  15017            001                     38
NJ...........  Middlesex...........  HERCULES INCORPORATED.........  15017            002                     37
NJ...........  Warren..............  HOFFMAN LAROCHE INC...........  85010            034                     45
NJ...........  Mercer..............  HOMASCTE COMPANY..............  60018            001                    290
NJ...........  Mercer..............  HOMASCTE COMPANY..............  60018            002                    312
NJ...........  Passaic.............  INTERNATIONAL VEILING CORPORAT  30098            001                     22
NJ...........  Bergen..............  MALT PRODUCTS CORPORATION.....  00322            001                     27
NJ...........  Atlantic............  MARINA ASSOCIATES.............  70009            001                    330
NJ...........  Atlantic............  MARINA ASSOCIATES.............  70009            002                    329
NJ...........  Atlantic............  MARINA ASSOCIATES.............  70009            003                    990
NJ...........  Union...............  MERCK & CO., INC..............  40009            001                     66
NJ...........  Union...............  MERCK & CO., INC..............  40009            002                     61
NJ...........  Union...............  MERCK & CO., INC..............  40009            003                     56
NJ...........  Union...............  MERCK & CO., INC..............  40009            004                     75
NJ...........  Union...............  MERCK & CO., INC..............  40009            005                     89
NJ...........  Union...............  MERCK & CO., INC..............  40009            006                    103
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            001                     54
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            002                     54
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            003                     54
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            004                     49
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            005                     16
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            006                    105
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            027                      0
NJ...........  Gloucester..........  MOBIL OIL CORPORATION.........  55006            270                     14
NJ...........  Monmouth............  NESTLE CO., INC., THE.........  20004            006                     13
NJ...........  Monmouth............  NESTLE CO., INC., THE.........  20004            007                     13

[[Page 1039]]

 
NJ...........  Middlesex...........  NEW JERSEY STEEL CORPORATION..  15076            001                     18
NJ...........  Gloucester..........  PETROLEUM RECYCLING, INC......  55180            020                    169
NJ...........  Atlantic............  SCOTT PAPER COMPANY...........  70011            002                     89
NJ...........  Atlantic............  SCOTT PAPER COMPANY...........  70011            003                     75
NJ...........  Atlantic............  SCOTT PAPER COMPANY...........  70011            004                     99
NJ...........  Mercer..............  STONY BROOK REGIONAL SEWERAGE.  60248            001                     55
NJ...........  Mercer..............  STONY BROOK REGIONAL SEWERAGE.  60248            002                     55
NY...........  Kings...............  HUDSON AVENUE.................  2496             B71                     19
NY...........  Kings...............  HUDSON AVENUE.................  2496             B72                     19
NY...........  Kings...............  HUDSON AVENUE.................  2496             B81                     19
NY...........  Kings...............  HUDSON AVENUE.................  2496             B82                     19
NY...........  Queens..............  RAVENSWOOD-A-HOUSE............  CE03             B01                     15
NY...........  Queens..............  RAVENSWOOD-A-HOUSE............  CE03             B02                     15
NY...........  Queens..............  RAVENSWOOD-A-HOUSE............  CE03             B03                     21
NY...........  Queens..............  RAVENSWOOD-A-HOUSE............  CE03             B04                     21
OH...........  Butler..............  AK STEEL (FORMERLY ARMCO STEEL  1409010006       P009                    66
                                      CO.).
OH...........  Butler..............  AK STEEL (FORMERLY ARMCO STEEL  1409010006       P010                    66
                                      CO.).
OH...........  Butler..............  AK STEEL (FORMERLY ARMCO STEEL  1409010006       P011                    66
                                      CO.).
OH...........  Butler..............  AK STEEL (FORMERLY ARMCO STEEL  1409010006       P012                    66
                                      CO.).
OH...........  Stark...............  ASHLAND PETROLEUM COMPANY.....  1576000301       B015                    18
OH...........  Lucas...............  BP OIL COMPANY, TOLEDO          0448020007       B004                    39
                                      REFINERY.
OH...........  Lucas...............  BP OIL COMPANY, TOLEDO          0448020007       B020                   102
                                      REFINERY.
OH...........  Montgomery..........  CARGILL INCORPORATED..........  0857041124       B004                   133
OH...........  Montgomery..........  CARGILL INCORPORATED..........  0857041124       B006                     1
OH...........  Butler..............  CHAMPION INTERNATIONAL CORP...  1409040212       B010                   267
OH...........  Summit..............  GOODYEAR TIRE & RUBBERCOMPANY.  1677010193       B001                   101
OH...........  Summit..............  GOODYEAR TIRE & RUBBERCOMPANY.  1677010193       B002                   108
OH...........  Hamilton............  HENKEL CORP.--EMERYGROUP......  1431070035       B027                   209
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B001                   139
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B002                   150
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B003                   159
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B004                   158
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B007                   155
OH...........  Cuyahoga............  LTV STEEL COMPANY, INC........  1318001613       B905                    14
OH...........  Ross................  MEAD CORPORATION..............  0671010028       B001                   185
OH...........  Ross................  MEAD CORPORATION..............  0671010028       B002                   208
OH...........  Ross................  MEAD CORPORATION..............  0671010028       B003                   251
OH...........  Scioto..............  NEW BOSTON COKE CORP..........  0773010004       B008                    20
OH...........  Scioto..............  NEW BOSTON COKE CORP..........  0773010004       B009                    15
OH...........  Hamilton............  PROCTER & GAMBLE CO...........  1431390903       B021                    72
OH...........  Hamilton............  PROCTER & GAMBLE CO...........  1431390903       B022                   296
OH...........  Lorain..............  REPUBLIC ENGINEERED STEELS,     0247080229       B013                   159
                                      INC. (FORMERLY USS/KOBESTEEL--
                                      LORAIN WORKS).
OH...........  Lawrence............  SOUTH POINT ETHANOL...........  0744000009       B003                   107
OH...........  Lawrence............  SOUTH POINT ETHANOL...........  0744000009       B004                   107
OH...........  Lawrence............  SOUTH POINT ETHANOL...........  0744000009       B007                   107
OH...........  Lucas...............  SUN REFINING & MARKETING CO,    0448010246       B044                    47
                                      TOLEDOREF.
OH...........  Lucas...............  SUN REFINING & MARKETING CO,    0448010246       B046                    34
                                      TOLEDOREF.
OH...........  Lucas...............  SUN REFINING & MARKETING CO,    0448010246       B047                    18
                                      TOLEDOREF.
OH...........  Trumbull............  W C I STEEL, INC..............  0278000463       B001                   113
OH...........  Trumbull............  W C I STEEL, INC..............  0278000463       B004                   142
PA...........  Northampton.........  BETHLEHEM STEEL CORP..........  0048             041                    100
PA...........  Northampton.........  BETHLEHEM STEEL CORP..........  0048             042                     66
PA...........  Northampton.........  BETHLEHEM STEEL CORP..........  0048             067                    165
PA...........  Armstrong...........  BMG ASPHALT CO................  0004             101                      0
PA...........  Erie................  GENERAL ELECTRIC..............  0009             032                     16
PA...........  York................  GLATFELTER, P. H. CO..........  0016             031                      0
PA...........  York................  GLATFELTER, P. H. CO..........  0016             034                    137
PA...........  York................  GLATFELTER, P. H. CO..........  0016             035                    112
PA...........  York................  GLATFELTER, P. H. CO..........  0016             036                    211
PA...........  Clinton.............  INTERNATIONAL PAPER: LOCKHAVEN  0008             033                    101
PA...........  Clinton.............  INTERNATIONAL PAPER: LOCKHAVEN  0008             034                     90
PA...........  Delaware............  KIMBERLY CLARK (FORMERLY SCOTT  0016             034                      1
                                      PAPER CO.).
PA...........  Delaware............  KIMBERLY CLARK (FORMERLY SCOTT  0016             035                    345
                                      PAPER CO.).
PA...........  Allegheny...........  LTV STEEL COMPANY--             0022             015                     25
                                      PITTSBURGHWORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--             0022             017                     15
                                      PITTSBURGHWORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--             0022             019                     29
                                      PITTSBURGHWORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--             0022             021                     55
                                      PITTSBURGHWORKS.
PA...........  Montgomery..........  MERCK SHARP & DOHME...........  0028             039                    126
PA...........  Westmoreland........  MONESSEN INC..................  0007             031                      0

[[Page 1040]]

 
PA...........  Bucks...............  PECO..........................  0055             043                     15
PA...........  Bucks...............  PECO..........................  0055             045                     32
PA...........  Bucks...............  PECO..........................  0055             044                     77
PA...........  Wyoming.............  PROCTER & GAMBLE CO...........  0009             035                    187
PA...........  Allegheny...........  SHENANGO IRON & COKE WORKS....  0050             006                     18
PA...........  Allegheny...........  SHENANGO IRON & COKE WORKS....  0050             009                     15
PA...........  Delaware............  SUN REFINING & MARKETING CO...  0025             089                    102
PA...........  Delaware............  SUN REFINING & MARKETING CO...  0025             090                    163
PA...........  Philadelphia........  SUN REFINING AND MARKETING 1 O  1501             020                     49
PA...........  Philadelphia........  SUN REFINING AND MARKETING 1 O  1501             021                     83
PA...........  Philadelphia........  SUN REFINING AND MARKETING 1 O  1501             022                    105
PA...........  Philadelphia........  SUN REFINING AND MARKETING 1 O  1501             023                    127
PA...........  Philadelphia........  SUNOCO (FORMERLY ALLIED         1551             052                     86
                                      CHEMICAL CORP).
PA...........  Perry...............  TEXAS EASTERN GAS PIPELINE      0001             031                      0
                                      COMPANY.
PA...........  Berks...............  TEXAS EASTERN GAS PIPELINE      0087             031                     98
                                      COMPANY.
PA...........  Delaware............  TOSCO REFINING (FORMERLY BP     0030             032                     71
                                      OIL, INC.).
PA...........  Delaware............  TOSCO REFINING (FORMERLY BP     0030             033                     80
                                      OIL, INC.).
PA...........  Philadelphia........  U.S. NAVAL BASE...............  9702             016                      0
PA...........  Philadelphia........  U.S. NAVAL BASE...............  9702             017                      1
PA...........  Philadelphia........  U.S. NAVAL BASE...............  9702             098                      0
PA...........  Philadelphia........  U.S. NAVAL BASE...............  9702             099                      0
PA...........  Elk.................  WILLAMETTE INDUSTRIES           0005             040                     90
                                      (FORMERLY PENNTECH PAPERS,INC.
PA...........  Elk.................  WILLAMETTE INDUSTRIES           0005             041                     89
                                      (FORMERLY PENNTECH PAPERS,INC.
PA...........  Beaver..............  ZINC CORPORATION OF AMERICA...  0032             034                    176
PA...........  Beaver..............  ZINC CORPORATION OF AMERICA...  0032             035                    180
VA...........  Hopewell............  ALLIED-SIGNAL INC.............  0026             002                    499
VA...........  York................  AMOCO OIL CO..................  0004             001                     25
VA...........  Giles...............  CELANESE ACETATE LLC (FORMERLY  0004             007                    148
                                      HOECHST CELANESE CORP).
VA...........  Giles...............  CELANESE ACETATE LLC (FORMERLY  0004             014                     56
                                      HOECHST CELANESE CORP).
VA...........  Pittsylvania........  DAN RIVER INC. (SCHOOLFIELD     0002             003                     49
                                      DIV).
VA...........  Bedford.............  GEORGIA-PACIFIC--BIG ISLAND     0003             002                     86
                                      MILL.
VA...........  Isle Of Wight.......  INTERNATIONAL PAPER--FRANKLIN   0006             003                    272
                                      (FORMERLYUNION CAMP CORP/FINE
                                      PAPER DIV).
VA...........  Hopewell............  JAMES RIVER COGENERATION (COGE  0055             001                    511
VA...........  Hopewell............  JAMES RIVER COGENERATION (COGE  0055             002                    512
VA...........  King William........  ST. LAURENT PAPER PRODUCTS      0001             003                    253
                                      CORP..
VA...........  Alleghany...........  WESTVACO CORP.................  0003             001                    253
VA...........  Alleghany...........  WESTVACO CORP.................  0003             002                    130
VA...........  Alleghany...........  WESTVACO CORP.................  0003             003                    195
VA...........  Alleghany...........  WESTVACO CORP.................  0003             004                    373
VA...........  Alleghany...........  WESTVACO CORP.................  0003             005                    170
VA...........  Alleghany...........  WESTVACO CORP.................  0003             011                    105
WV...........  Kanawha.............  AVENTIS CROPSCIENCE...........  00007            010                    113
WV...........  Kanawha.............  AVENTIS CROPSCIENCE...........  00007            011                    102
WV...........  Kanawha.............  AVENTIS CROPSCIENCE...........  00007            012                    105
WV...........  Kanawha.............  DUPONT--BELLE.................  00001            612                     54
WV...........  Fayette.............  ELKEM METALS COMPANY L.P.--     00001            006                    116
                                      ALLOY PPLANT.
WV...........  Marshall............  PPG INDUSTRIES, INC...........  00002            001                    195
WV...........  Marshall............  PPG INDUSTRIES, INC...........  00002            003                    419
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            070                      8
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            071                     73
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            080                      7
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            081                     66
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            090                      8
WV...........  Kanawha.............  RHONE-POLUENC.................  00007            091                     68
WV...........  Kanawha.............  UNION CARBIDE--SOUTH            00003            0B6                     66
                                      CHARLESTONPLANT.
WV...........  Kanawha.............  UNION CARBIDE--SOUTH            0003             0B6                     92
                                      CHARLESTONPLANT.
WV...........  Kanawha.............  UNION CARBIDE--SOUTH            0003             0B7                     45
                                      CHARLESTONPLANT.
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            030                     31
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            088                     30
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            089                      2
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            090                    110
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            091                    253
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            092                    208
WV...........  Hancock.............  WEIRTON STEEL CORPORATION.....  00001            093                    200
----------------------------------------------------------------------------------------------------------------


[65 FR 2727, Jan. 18, 2000, as amended at 66 FR 48576, Sept.21, 2001]

[[Page 1041]]



    Sec. Appendix C to Part 97--Final Section126 Rule: Trading Budget

----------------------------------------------------------------------------------------------------------------
                               ST                                    F126-EGU        F126-NEGU         Total
----------------------------------------------------------------------------------------------------------------
DC..............................................................             207              26             233
DE..............................................................           4,306             232           4,538
IN..............................................................           7,088              82           7,170
KY..............................................................          19,654              53          19,707
MD..............................................................          14,519           1,013          15,532
MI..............................................................          25,689           2,166          27,855
NC..............................................................          31,212           2,329          33,541
NJ..............................................................           9,716           4,838          14,554
NY..............................................................          16,081             156          16,237
OH..............................................................          45,432           4,103          49,535
PA..............................................................          47,224           3,619          50,843
VA..............................................................          17,091           4,104          21,195
WV..............................................................          26,859           2,184          29,043
                                                                 -----------------------------------------------
    Total.......................................................         265,078          24,905         289,983
----------------------------------------------------------------------------------------------------------------



  Sec. Appendix D to Part 97--Final Section 126Rule: State Compliance 

          supplement pools for the Section 126 Final Rule(Tons)

------------------------------------------------------------------------
                                                            Compliance
                          State                             supplement
                                                               pool
------------------------------------------------------------------------
Delaware................................................             168
District of Columbia....................................               0
Indiana.................................................           2,454
Kentucky................................................           7,314
Maryland................................................           3,882
Michigan................................................           9,398
New Jersey..............................................           1,550
New York................................................           1,379
North Carolina..........................................          10,737
Ohio....................................................          22,301
Pennsylvania............................................          15,763
Virginia................................................           5,504
West Virginia...........................................          16,709
                                                         ---------------
    Total...............................................          97,159
------------------------------------------------------------------------

                         PARTS 98	99 [RESERVED]


[[Page 1043]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters andparts and an 
alphabetical list of agencies publishing in the CFR areincluded in the 
CFR Index and Finding Aids volume to the Code ofFederal Regulations 
which is published separately and revisedannually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1045]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 2008)

  The Director of the Federal Register has approved under 5 U.S.C.552(a) 
and 1 CFR Part 51 the incorporation by reference of thefollowing 
publications. This list contains only those incorporationsby reference 
effective as of the revision date of this volume.Incorporations by 
reference found within a regulation are effectiveupon the effective date 
of that regulation. For more information onincorporation by reference, 
see the preliminary pages of this volume.


40 CFR (PARTS 87 TO 99)

ENVIRONMENTAL PROTECTION AGENCY
                                                                  40 CFR


American National Standards Institute

  25 West 43rd Street, Fourth floor, New York, NY 
  10036
ANSI B109.1-1992, Diaphragm Type Gas Displacement                 92.117
  Meters.


American Society for Testing and Materials

  100 Barr Harbor Drive, West Conshohocken, PA 
  19428-2959;Telephone: (610) 832-9585, FAX: (610) 
  832-9555
ASTM D 86-93 Standard Test Method for Distillation       90.7; Part 90, 
  ofPetroleum Products.                            Appendix A to Subpart 
                                                      D, Table 3; 91.6; 
                                                   Part 91,Appendix A to 
                                                               Subpart D
ASTM D 86-95, Standard Test Method for                            92.113
  Distillation ofPetroleum Products.
ASTM D 86-97, Standard Test Method for                   89.6; Part 86, 
  Distillation ofPetroleum Products at Atmospheric Appendix A to Subpart 
  Pressure.                                                            D
ASTM D 86-01, Standard Test Method for                      94.5; 94.108
  Distillation ofPetroleum Products at Atmospheric 
  Pressure.
ASTM D 93-94, Standard Test Methods for Flash                     92.113
  Point byPensky-Martens Closed Cup Tester.
ASTM D 93-97, Standard Test Methods for Flash            89.6; Part 89, 
  Point byPensky-Martens Closed Cup Tester.        Appendix A to Subpart 
                                                                       D
ASTM D 93-02, Standard Test Methods for Flash               94.5; 94.108
  Point byPensky-Martens Closed Cup Tester.
ASTM D 129-95, Standard Test Method for Sulfur in        89.6; Part 89, 
  PetroleumProducts (General Bomb Method).         Appendix A to Subpart 
                                                                       D
ASTM D 129-00, Standard Test Method for Sulfur in           94.5; 94.108
  PetroleumProducts (General Bomb Method).
ASTM D 287-92, Standard Test Method for API              89.6; Part 89, 
  Gravity ofCrude Petroleum and Petroleum Products Appendix A to Subpart 
  (Hydrometer Method).                                         D; 92.113
ASTM D 287-92 (Reapproved 2000), Standard Test              94.5; 94.108
Method forAPI Gravity of Crude Petroleum and 
[[Page 1046]]oducts (HydrometerMethod).

ASTM D 323-90, Standard Test Method for                  91.6; Part 91, 
  VaporPressure of Petroleum Products (Reid        Appendix A to Subpart 
  Method).                                                             D
ASTM D 445-94, Standard Test Method for Kinematic                 92.113
  Viscosityof Transparent and Opaque Liquids (the 
  Calculation of DynamicViscosity).
ASTM D445-97, Standard Test Method for Kinematic         89.6; Part 89, 
  Viscosityof Transparent and Opaque Liquids (the  Appendix A to Subpart 
  Calculation of DynamicViscosity).                                    D
ASTM D445-01, Standard Test Method for Kinematic            94.5; 94.108
  Viscosityof Transparent and Opaque Liquids (the 
  Calculation of DynamicViscosity).
ASTM D 613-95, Standard Test Method for Cetane           89.6; Part 89, 
  Number ofDiesel Fuel Oil.                        Appendix A to Subpart 
                                                               D; 92.113
ASTM D 613-01, Standard Test Method for Cetane              94.5; 94.108
  Number ofDiesel Fuel Oil.
ASTM D 976-91, Standard Test Method for Calculated                92.113
  CetaneIndex of Distillate Fuels.
ASTM D 1319-89, Standard Test Method for                 90.7, Part 90, 
  Hydrocarbon Typesin Liquid Petroleum Products by Appendix A to Subpart 
  Fluorescent Indicator Adsorption.                                    D
ASTM D 1319-93, Standard Test Method for                 91.6; Part 91, 
  Hydrocarbon Typesin Liquid Petroleum Products by Appendix A to Subpart 
  Fluorescent Indicator Adsorption.                                    D
ASTM D 1319-95, Standard Test Method for                          92.113
  Hydrocarbon Typesin Liquid Petroleum Products by 
  Fluorescent Indicator Adsorption.
ASTM D 1319-98, Standard Test Method for                 89.6; Part 89, 
  Hydrocarbon Typesin Liquid Petroleum Products by Appendix A to Subpart 
  Fluorescent Indicator Adsorption.                                    D
ASTM D 1319-02a, Standard Test Method for                   94.5; 94.108
  Hydrocarbon Typesin Liquid Petroleum Products by 
  Fluorescent Indicator Adsorption.
ASTM D 1945-91, Standard Test Method for Analysis                 92.113
  ofNatural Gas by Gas Chromatography.
ASTM D 2622-92, Standard Test Method for Sulfur     89.6; Appendix A to 
  inPetroleum Products by X-ray Spectrometry.       Subpart D, Table 3; 
                                                         90.7; Part 90, 
                                                   Appendix Ato Subpart 
                                                      D, Table 3; 91.6; 
                                                    Part 91, Appendix A 
                                                            to Subpart D
ASTM D 2622-94, Standard Test Method for Sulfur                   92.113
  inPetroleum Products by X-ray Spectrometry.
ASTM D2622-98, Standard Test Method for Sulfur in        89.6; Part 89, 
  PetroleumProducts by Wavelength Dispersive X-ray Appendix A to Subpart 
  Fluorescence Spectrometry.                             D; 94.5; 94.108
ASTM D 2699-92, Standard Test Method for                 90.7; Part 90, 
  KnockCharacteristics of Motor Fuels by the       Appendix A to Subpart 
  Research Method.                                    D, Table 3; 91.6; 
                                                   Part 91,Appendix A to 
                                                               Subpart D

[[Page 1047]]

ASTM D 2700-92, Standard Test Method for                 90.7; Part 90, 
  KnockCharacteristics of Motor and Aviation Fuels Appendix A to Subpart 
  by the Motor Method.                                D, Table 3; 91.6; 
                                                   Part 91,Appendix A to 
                                                               Subpart D
ASTM D 3231-89, Standard Test Method for                 90.7; Part 90, 
  Phosphorus inGasoline.                           Appendix A to Subpart 
                                                      D, Table 3; 91.6; 
                                                   Part 91,Appendix A to 
                                                               Subpart D
ASTM D 3606-92, Standard Test Method for                 90.7; Part 90, 
  Determination ofBenzene and Toluene in Finished  Appendix A to Subpart 
  Motor and Aviation Gasoline by                      D, Table 3; 91.6; 
  GasChromatography.                               Part 91,Appendix A to 
                                                               Subpart D
ASTM D 5186-91, Standard Test Method for                          92.113
  Determination ofAromatic Content of Diesel Fuels 
  by Supercritical Fluid Chromatography.
ASTM D 5186-96, Standard Test Method for                 89.6; Part 89, 
  Determination ofthe Aromatic Content and         Appendix A to Subpart 
  Polynuclear Aromatic Content of Diesel Fuelsand                      D
  Aviation Turbine Fuels by Supercritical Fluid 
  Chromatography.
ASTM D 5186-99, Standard Test Method for                    94.5; 94.108
  Determination ofthe Aromatic Content and 
  Polynuclear Aromatic Content of Diesel Fuelsand 
  Aviation Turbine Fuels by Supercritical Fluid 
  Chromatography.
ASTM D 5191-93a, Standard Test Method for Vapor          90.7; Part 90, 
  Pressure ofPetroleum Products (Mini Method).     Appendix A to Subpart 
                                                              D, Table 3
ASTM E29-90, Standard Practice for Using               89.6; 89.207-96; 
  Significant Digitsin Test Data to Determine                  89.509-96
  Conformance with Specifications.
ASTM E 29-93a, Standard Practice for Using               89.6; Part 89, 
  SignificantDigits in Test Data to Determine      Appendix A to Subpart 
  Conformance with Specifications.                     D; 90.7; 90.116; 
                                                   90.509;91.6; Part 91, 
                                                   Appendix A to Subpart 
                                                     D; 91.120; 91.207; 
                                                   91.509;91.1307; 92.9, 
                                                   92.305, 92.509, 94.9; 
                                                        94.218; 94.305; 
                                                                  94.508
ASTM E 29-02, Standard Practice for Using                     94.2; 94.5
  SignificantDigits in Test Data to Determine 
  Conformance with Specifications.


California State Regulations

  California Air Resources Board, Haagen-Smit 
  Laboratory, 9528Telstar Avenue, El Monte, CA 
  91731-2990
California Air Resources Board Resolution 92-2,        89.6; 89.112-96; 
  CaliforniaRegulations for New 1996 and Later      89.119-96; 89.508-96
Heavy-Duty Off-Road Diesel CycleEngines.
[[Page 1048]]

Environmental Protection Agenvy

  OAR, 401 M St. SW., Washington, DC 20460
California Regulatory Requirements Applicable to               88.104-94
  the Clean FuelFleet and California Pilot 
  Programs, April 1, 1990.


International Civil Aviation Organization

  Document Sales Unit, 999 University Street, 
  Montreal, Quebec,Canada H3C 5H7
ICAO Annex 16, Volume II, Aircraft Engine           87.8; 87.64; 87.71; 
  Emissions, SecondEdition 1993, including                  87.82; 87.89
  Amendment 3 of March 20, 1997.
ICAO Annex 16, Volume II, Aircraft Engine                          87.82
  Emissions (Second Ed.1993), Appendix 2.
ICAO Annex 16, Volume II, Aircraft Engine                          87.64
  Emissions (Second Ed.1993), Appendixes 3 and 5.
ICAO Annex 16, Volume II, Aircraft Engine                   87.71; 87.89
  Emissions (Second Ed.1993), Appendix 6.


International Maritime Organization

  4 Albert Embankment, London SE1 7SR, United 
  Kingdom
Annex VI of MARPOL 73/78, Revision 2: Technical      94.2; 94.5; 94.11; 
  Code on Control ofEmission of Nitrogen Oxides         94.108; 94.109; 
  from Marine Diesel Engines, 1997.                     94.204; 94.211; 
                                                                 94.1004


International Organization for Standardization

  Case Postale 56, CH-1211 Geneva 20, Switzerland
ISO 8178-1: Reciprocating Internal                          94.5; 94.109
  CombustionEngines--Exhaust Emission 
  Measurement--Part 1: Test-bedMeasurement of 
  Gaseous and Particulate Exhaust Emissions, 
  August 15,1996.


Society of Automotive Engineers

  400 Commonwealth Dr. Warrendale, PA 15096-0001; 
  Telephone:(724) 776-4841
SAE J244, June 83, Recommended Practice for            89.6; 89.416-96; 
  Measurement of IntakeAir or Exhaust Gas Flow of                 92.108
  Diesel Engines.
SAE J1228/ISO 8665, Small Craft-Marine Propulsion  91.6; 91.104; 91.115; 
  Engine andSystems-Power Measurements and              91.118; 91.207; 
  Declarations, November 1991.                                   91.1307
SAE J1930, September 1991, Electrical/Electronic    90.7; 90.114; 91.113
  SystemsDiagnostic Terms, Definitions, 
  Abbreviations, and Acronyms.
SAE J1930, June 1993, Electrical/Electronic                 91.6; 91.113
  Systems DiagnosticTerms, Definitions, 
  Abbreviations, and Acronyms.
SAE J1937, November 89, Recommended Practice for         89.6; 89.327-96
  Engine Testingwith Low Temperature Charge Air 
  Cooler Systems in a Dynamometer TestCell.
SAE Paper 770141, Optimization of a Flame              89.6; 89.319-96; 
  Ionization Detector forDetermination of           90.7; 90.316; 91.6; 
  Hydrocarbon in Diluted Automotive Exhausts,             91.316; 92.119
  Glenn D.Reschke, 1977.

[[Page 1049]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2008)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                forGrants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grantsand Agreements (Parts 100--199)
        II  Office of Management and Budget Circulars and 
                Guidance(200--299)
            Subtitle B--Federal Agency Regulations for Grants 
                andAgreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration 
                (Parts1880--1899)
      XXII  Corporation for National and Community Service 
                (Parts2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration 
                (Parts2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 1050]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts1500--1599)
        VI  Federal Retirement Thrift Investment Board 
                (Parts1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the FederalLabor Relations Authority and Federal 
                Service Impasses Panel (Parts2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 1051]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts6800--6899)
       LIX  National Aeronautics and Space Administration 
                (Parts6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development 
                (Parts7500--7599)
      LXVI  National Archives and Records Administration 
                (Parts7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board 
                (Parts8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System(Department of Homeland 
                Security--Office of PersonnelManagement) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                LaborRelations Systems (Department of Defense--
                Office of PersonnelManagement) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts0--99)
         X  Privacy and Civil Liberties Oversight Board 
                (Parts1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, MarketingPractices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts210--299)

[[Page 1052]]

       III  Animal and Plant Health Inspection Service, Department 
                ofAgriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture(Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture(Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture 
                (Parts700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (FederalGrain Inspection Service), 
                Department of Agriculture (Parts800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders;Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders;Milk), Department of Agriculture (Parts 
                1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders;Miscellaneous Commodities), Department 
                of Agriculture (Parts1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture 
                (Parts1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, RuralUtilities Service, and Farm Service 
                Agency, Department of Agriculture(Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts2600--2699)
     XXVII  Office of Information Resources Management, Department 
                ofAgriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture 
                (Parts2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture(Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture(Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department ofAgriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service,Department of Agriculture (Parts 3400--
                3499)

[[Page 1053]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                ofAgriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service,Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization)(Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice(Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                ofAgriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packersand Stockyards Programs), 
                Department of Agriculture (Parts200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture(Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts1--199)
        II  Federal Reserve System (Parts 200--299)

[[Page 1054]]

       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department ofHousing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department ofthe Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce(Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department ofCommerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation(Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (AviationProceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration,Department of Transportation (Parts 
                400--499)
         V  National Aeronautics and Space Administration 
                (Parts1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce 
                (Parts0--29)
            Subtitle B--Regulations Relating to Commerce and 
                ForeignTrade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department ofCommerce (Parts 200--299)

[[Page 1055]]

       III  International Trade Administration, Department of 
                Commerce (Parts300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department ofCommerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                andInformation
     XXIII  National Telecommunications and Information 
                Administration,Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                HomelandSecurity; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission 
                (Parts200--299)

[[Page 1056]]

       III  International Trade Administration, Department of 
                Commerce (Parts300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department ofHomeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor(Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment andTraining Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                HumanServices (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States andMexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 1057]]

       XIV  Foreign Service Labor Relations Board; Federal Labor 
                RelationsAuthority; General Counsel of the Federal 
                Labor Relations Authority;and the Foreign Service 
                Impasse Disputes Panel (Parts1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation(Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal HighwayAdministration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department ofTransportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housingand Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and 
                UrbanDevelopment
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department ofHousing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-
                FederalHousingCommissioner, Department of Housing 
                and Urban Development(Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housingand Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                AssistanceRestructuring, Department of Housing and 
                Urban Development (Parts400--499)
         V  Office of Assistant Secretary for Community Planning 
                andDevelopment, Department of Housing and Urban 
                Development (Parts500--599)
        VI  Office of Assistant Secretary for Community Planning 
                andDevelopment, Department of Housing and Urban 
                Development (Parts600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                UrbanDevelopment (Housing Assistance Programs and 
                Public and Indian HousingPrograms) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--
                FederalHousing Commissioner, Department of Housing 
                and Urban Development(Section 8 Housing Assistance 
                Programs, Section 202 Direct LoanProgram, Section 
                202 Supportive Housing for the Elderly Program 
                andSection 811 Supportive Housing for Persons With 
                Disabilities Program)(Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing,Department of Housing and Urban 
                Development (Parts 900--1699)

[[Page 1058]]

         X  Office of Assistant Secretary for Housing--Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (InterstateLand Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                UrbanDevelopment (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior(Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and IndianHealth Service, Department of Health and 
                Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department ofthe Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department ofthe Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of theTreasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Departmentof Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts600--699)
       VII  Office of Independent Counsel (Parts 700--799)

[[Page 1059]]

      VIII  Court Services and Offender Supervision Agency for the 
                District ofColumbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts900--999)
        XI  Department of Justice and Department of State 
                (Parts1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts0--
                99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service 
                (Parts1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor(Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor(Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of theInterior (Parts 300--399)
        IV  Geological Survey, Department of the Interior 
                (Parts400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Departmentof the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts0--50)

[[Page 1060]]

            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury(Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury(Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                theTreasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury(Parts 800--899)
        IX  Federal Claims Collection Standards (Department of 
                theTreasury--Department of Justice) (Parts 900--
                999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence 
                (Parts1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives andRecords Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations 
                (Parts2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department ofTransportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education(Parts 1--99)

[[Page 1061]]

            Subtitle B--Regulations of the Offices of 
                theDepartment of Education
         I  Office for Civil Rights, Department of Education 
                (Parts100--199)
        II  Office of Elementary and Secondary Education, 
                Department ofEducation (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services,Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education(Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs,Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department ofEducation [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts1100--1199)
       XII  National Archives and Records Administration 
                (Parts1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in 
                NationalEnvironmental Policy Foundation (Parts 
                1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce(Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress 
                (Parts301--399)

[[Page 1062]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce(Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board 
                (Parts1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; UniformNational Discharge Standards for 
                Vessels of the Armed Forces (Parts1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                SeverelyDisabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                EmploymentOpportunity, Department of Labor 
                (Parts60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment andTraining Service, Department of 
                Labor (Parts61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts101-1--
                101-99)
       102  Federal Management Regulation (Parts102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts109-1--109-99)
       114  Department of the Interior (Parts114-1--114-99)
       115  Environmental Protection Agency (Parts115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)

[[Page 1063]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management[Reserved]
            Subtitle E--Federal Information Resources 
                ManagementRegulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees(Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services(Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                ofHealth and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health andHuman Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                HomelandSecurity (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 1064]]

        II  Office of Family Assistance (Assistance Programs), 
                Administrationfor Children and Families, 
                Department of Health and Human Services(Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                EnforcementProgram), Administration for Children 
                and Families, Department ofHealth and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children andFamilies, Department of Health and 
                Human Services (Parts400--499)
         V  Foreign Claims Settlement Commission of the United 
                States,Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children andFamilies, Department of Health and 
                Human Services (Parts1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts1100--1199)
       XII  Corporation for National and Community Service 
                (Parts1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health andHuman Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation 
                (Parts2400--2499)
       XXV  Corporation for National and Community Service 
                (Parts2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                HomelandSecurity (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                SecurityCouncil (Parts 200--299)

[[Page 1065]]

       III  National Telecommunications and Information 
                Administration,Department of Commerce (Parts 300--
                399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense(Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health BenefitsAcquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration 
                (Parts1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group LifeInsurance Federal Acquisition Regulation 
                (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development 
                (Parts2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                AcquisitionRegulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation 
                (Parts3400--3499)
        51  Department of the Army Acquisition Regulations 
                (Parts5100--5199)
        52  Department of the Navy Acquisition Regulations 
                (Parts5200--5299)
        53  Department of the Air Force Federal Acquisition 
                RegulationSupplement [Reserved]
        54  Defense Logistics Agency, Department of Defense 
                (Parts5400--5499)

[[Page 1066]]

        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                ProcurementPolicy, Office of Management and Budget 
                (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Departmentof Transportation (Parts 
                100--199)
        II  Federal Railroad Administration, Department of 
                Transportation(Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department ofTransportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security 
                (Parts400--499)
         V  National Highway Traffic Safety Administration, 
                Department ofTransportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation(Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department ofTransportation [Reserved]
       XII  Transportation Security Administration, Department of 
                HomelandSecurity (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                theInterior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                andAtmospheric Administration, Department of 
                Commerce (Parts200--299)
       III  International Fishing and Related Activities 
                (Parts300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service,Department of the Interior and National 
                Marine Fisheries Service,National Oceanic and 
                Atmospheric Administration, Department 
                ofCommerce); Endangered Species Committee 
                Regulations (Parts400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 1067]]

        VI  Fishery Conservation and Management, National Oceanic 
                andAtmospheric Administration, Department of 
                Commerce (Parts600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 1069]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2008)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1070]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People WhoAre
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretaryfor
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District ofColumbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1071]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender SupervisionAgency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3

[[Page 1072]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     AcquisitionRegulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of theFederal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 1073]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretaryfor
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of AssistantSecretary for
  Housing, Office of, and Multifamily Housing     24, IV
       AssistanceRestructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     AssistantSecretary for
Housing, Office of, and Multifamily Housing       24, IV
     AssistanceRestructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives andRecords Administration
[[Page 1074]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States andMexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 1075]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the AssistantSecretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     NationalEnvironmental Policy Foundation
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and TechnologyPolicy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI

[[Page 1076]]

Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       AcquisitionRegulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National SecurityCouncil
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III

[[Page 1077]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and WaterCommission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the AssistantSecretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1079]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations thatwere 
made by documents published in the Federal Register sinceJanuary 1, 
2001, are enumerated in the following list. Entriesindicate the nature 
of the changes effected. Page numbers refer toFederal Register pages. 
The user should consult the entries forchapters and parts as well as 
sections for revisions.
Title 40 was established at 36 FR 12213, June 29, 1971. For theperiod 
before January 1, 2001, see the ``List of CFR SectionsAffected, 1964-
1972, 1973-1985, and1986-2000'' published in ten separate volumes.

                                  2001

40 CFR
                                                                   66 FR
                                                                    Page
Chapter I
Chapter I Nomenclature change...............................34375, 34376
92.120 (c)(2)(v) corrected; CFR correction..................58953, 59602
92.121 (b)(2)(vi), (ix), (xi)(A) and (4)(iv) correctlyrevised; CFR 
        correction..........................................58953, 59602
92.132 Correctly revised; CFR correction....................58953, 59602
96 State implementation plan determinations........................40609
    Comment period extended........................................47887
97 State implementation plan determinations........................40609
    Comment period extended........................................47887
    Appendix A amended.............................................48575
    Appendix B amended.............................................48576

                                  2002

40 CFR
                                                                   67 FR
                                                                    Page
Chapter I
89.2 Amended.......................................................68339
89.106 (b) revised.................................................68339
90 Heading revised.................................................68339
90.1 Revised.......................................................68339
90.2 (c) added.....................................................68339
90.3 Amended.......................................................68339
90.103 (a)(2)(v) redesignated as (a)(2)(vi); new (a)(2)(v)added....68340
90.110 (b) revised.................................................68340
91.3 Amended.......................................................68340
91.110 (b) revised.................................................68340
91.419 (b) amended.................................................68340
91.601--91.608 (Subpart G) Appendix A amended......................68340
91.803 (a) revised.................................................68340
93.102 (d) added...................................................50817
93.104 (e)(2) revised..............................................50817
94 Heading revised.................................................68341
94.1 Revised.......................................................68341
94.2 Amended; (b) introductory text revised........................68341
94.7 (c), (d) and (e) revised......................................68341
94.8 (a), (e), (f) introductory text and (1) revised...............68342
94.9 (a) introductory text and (1) revised.........................68343
94.12 Introductory text, (a), (b)(1) and (e) revised; (f)and (g) 
        added......................................................68343
94.104 (c) redesignated as (d); new (c) added......................68343
94.105 (b) text and Footnotes 1 and 2 in (c)(1) table, (2)table 
        and (d)(1) table amended; (e) added........................68343
94.106 (b) introductory text, (1) introductory text, 
        (2)introductory text, (3) introductory text and (4) 
        revised; (b)(5)added.......................................68344
94.108 (a)(1) amended..............................................68345
94.203 (d)(14) and (16) revised....................................68346
94.204 (b)(9) and (10) amended; (b)(11) added; (e)revised..........68346
94.209 Revised.....................................................68346
94.212 (b)(10) revised.............................................68346
94.218 (d)(2)(iv) added............................................68346
94.304 (k) revised.................................................68346
94.501 (a) revised.................................................68346

[[Page 1080]]

94.503 (d) added...................................................68347
94.907 (d) and (g) revised.........................................68347
94.1103 (a)(5) revised.............................................68347
96 Notice..........................................................10844
    Policy statement...............................................21868
97 Policy statement................................................21868
97.4 (b)(4)(vi)(A) and (B) amended.................................21529
97.5 (c)(5)(i) and (ii) amended....................................21529
97.6 (c)(3) amended................................................21529
97.21 (b)(1)(i), (ii), (2)(i) and (ii) amended.....................21529
97.41 (a) and (d) revised..........................................21529
97.42 (b) and (c) amended..........................................21529
97.43 (a) introductory text, (4) introductory text, (ii),(b)(1), 
        (2), (c)(2) through (8) amended............................21529
97.53 (a) through (d) and (e) introductory textamended.............21530
97.54 (f) amended..................................................21530
97.70 (b)(1) through (3), (i), (4) introductory text, (5),(i) and 
        (6) amended................................................21530
97.74 (d)(1)(ii), (iii), (2)(ii)(B), (C) and (D)amended............21530
    Notice.........................................................10844
    Appendices A, B and C amended..................................21530

                                  2003

40 CFR
                                                                   68 FR
                                                                    Page
Chapter I
89.2 (1)(iv) added.................................................17748
    Regulation at 68 FR 17748 withdrawn............................25823
94.1 (b) revised....................................................9780
94.2 (b) amended....................................................9781
    Amended........................................................54960
94.5 Revised........................................................9781
94.7 (d) revised....................................................9782
94.8 (a) and (c) through (g) revised................................9782
    (a)(2)(i) Table A-1 and (e) revised............................54960
94.9 (a)(1), (b)(1) and (2) revised.................................9783
    (a)(1) revised.................................................54960
94.10 (a) revised...................................................9784
94.11 (g) added.....................................................9784
94.12 Introductory text revised; (f) added..........................9784
    (f) redesignated as (h)........................................54960
94.106 Heading and introductory text revised........................9784
94.107 (a) revised; (f) added.......................................9784
94.108 (a)(1), (b) and (d)(1) revised; (e) added....................9784
94.109 Added........................................................9785
94.203 (d)(14) revised..............................................9785
94.204 (f) added....................................................9785
94.205 (b) revised; (e) and (f) added...............................9785
94.209 Introductory text added......................................9786
94.211 (a)(3), (e)(2)(iii), (k) and (l) added; (h)introductory 
        text and (j)(2) introductory text revised...................9786
94.214 Revised......................................................9786
94.217 (f) added....................................................9786
94.218 (c) and (d)(1) revised.......................................9786
94.219 (a) revised..................................................9786
94.305 (a) revised..................................................9786
94.403 (a) revised..................................................9786
94.503 (a) and (b) revised..........................................9787
94.505 (a) introductory text revised................................9787
94.507 (a) revised..................................................9787
94.508 (a) through (d) and (e) introductory textrevised.............9787
94.510 (b) revised..................................................9787
94.801 (b) revised..................................................9787
94.904 (b)(7) removed...............................................9787
94.906 Heading revised; (d) removed.................................9787
94.907 (d) introductory text revised................................9787
94.1001--94.1004 (Subpart K) Added..................................9787
94.1103 (a)(2)(v), (vi) and (7) added; (a)(3)(i)revised.............9788
94.1106 Introductory text and (d) added; (a) and (c)(1)revised......9789

                                  2004

40 CFR
                                                                   69 FR
                                                                    Page
Chapter I
89.1 (b)(6) added; eff. 8-30-04....................................39212
89.2 Amended; eff. 8-30-04.........................................39212
89.112 (f)(1) introductory text revised; (g) added; eff.8-30-04....39212
89.114 (b)(3) added; eff. 8-30-04..................................39212
89.203 (c)(6) added; eff. 8-30-04..................................39213
89.330 (b)(3) revised; (e) added; eff. 8-30-04.....................39213
89.908 (c) added; eff. 8-30-04.....................................39213
89.910 (c) added; eff. 8-30-04.....................................39213
90.1 (g) added......................................................2441
90.122 (e)(1) and (2) revised.......................................1833
90.203 (e)(1), (5) and (g)(1) revised; (h) amended..................1833

[[Page 1081]]

90.204 (a) and (c) amended..........................................1834
90.205 (a)(4) and (5) revised.......................................1834
90.206 (a) revised..................................................1834
90.207 (c) redesignated as (c)(1); (c)(2) and (g)added..............1834
90.212 Removed......................................................1835
90.213 Removed......................................................1835
90.214 Removed......................................................1835
90.215 Removed......................................................1835
90.216 Removed......................................................1835
90.217 Removed......................................................1835
90.218 Removed......................................................1835
90.219 Removed......................................................1835
90.220 Removed......................................................1835
93 Technical correction............................................43325
93.101 Amended; eff. 8-2-04........................................40072
93.102 (b)(1), (2) introductory text, (iii), (c) and (d)revised; 
        (b)(3) redesignated as (b)(4); new (b)(3) added; eff.8-2-
        04.........................................................40072
93.104 (b)(3) and (c)(3) amended; (c)(4), (e)(1) and (4)removed; 
        (e)(2), (3) and (5) redesignated as (e)(1), (2) and (3); 
        (d),new (e)(2) and (3) revised; eff. 8-2-04................40072
93.105 (c)(1)(vii) amended; eff. 8-2-04............................40073
93.106 (b) revised; eff. 8-2-04....................................40073
93.109 (d) through (g) redesignated as (f), (g), (h) and(l); (b) 
        introductory text, (c), new (f) introductory text, (2), 
        (3),(4)(i), (ii), new (g) introductory text, (2), (3), new 
        (h) and new (l)(2) introductory text revised; (b) Table 1 
        amended; new (d), (e), (i),(j) and (k) added; new 
        (l)(2)(ii)(B) and (iii) amended; eff.8-2-04................40073
93.110 (a) revised; eff. 8-2-04....................................40077
93.116 Revised; eff. 8-2-04........................................40077
93.117 Revised; eff. 8-2-04........................................40078
93.118 (a) and (b)(2)(ii) amended; (b) introductory text,(2)(iii), 
        (e)(1), (2) and (3) revised; (b)(2)(iv) and (f) added; 
        eff.8-2-04.................................................40078
93.119 (c) through (h) redesignated as (d) and (f) through(j); 
        heading, (a), (b), new (d) introductory text, (1), new 
        (f)(5) and(g) revised; new (c), (e), (f)(7) and (8) added; 
        new (f)(6), (h)introductory text, (i) introductory text 
        and (j) amended; eff.8-2-04................................40079
93.120 (a)(2) revised; eff. 8-2-04.................................40080
93.121 (a)(2) redesignated as (a)(3); (a)(1), new (3) and(b)(1) 
        revised; new (a)(2) and (c) added; (b) introductory 
        textamended; eff. 8-2-04...................................40080
93.122 (c), (d) and (e) redesignated as (d), (e) and (g);new (c), 
        (f) and (g)(3) added; new (g)(1) and (2) introductory 
        textrevised; eff. 8-2-04...................................40080
93.124 (b) removed; (c), (d) and (e) redesignated as (b),(c) and 
        (d); eff. 8-2-04...........................................40081
93.125 (a) and (d) amended; eff. 8-2-04............................40081
93.126 Table 2 amended; eff. 8-2-04................................40081
94.12 (f) added.....................................................9215
94.908 (c) added; eff. 8-30-04.....................................39213
97.2 Amended.......................................................21645
97.4 (a) revised; (b)(1), (4)(i), (iv), (vi)(A) and (B)amended.....21645
97.5 (c)(6)(i) and (ii) amended; (c)(6)(iii) added.................21646
97.40 Amended......................................................21646
97.42 (d)(4), (e)(1) and (2) amended...............................21646
97.43 (c)(8) removed...............................................21646
97.51 (b)(1)(i)(D) amended.........................................21646
97.54 (f) introductory text amended................................21646
97.61 (b) amended..................................................21647
97.70 (a)(1) amended; (b)(5) and (6) removed; (b)(7), (8)and (9) 
        redesignated as new (b)(5), (6) and (7); (b)(3), (4), new 
        (5),new (6) and (c) revised................................21647
97.71 (a) introductory text revised; (b)(1), (2), (3)(ii),(iii), 
        (iv)(C) and (c) amended; (c)(i), (ii) and (iii) removed....21647
97.72 (a) and (b) amended..........................................21648
97.74 (a)(1), (d)(1) and (2)(ii) revised...........................21648
97.87 (b)(1)(iii)(A) amended.......................................21648
97.90 (Subpart J) Added............................................21648

[[Page 1082]]

                                  2005

40 CFR
                                                                   70 FR
                                                                    Page
Chapter I
87 Technical correction............................................71191
87.7 (b)(1) and (2) removed........................................69686
87.8 Added.........................................................69686
87.21 (d)(1)(vi) and (vii) added...................................69686
87.64 Revised......................................................69686
87.71 Revised......................................................69686
87.82 Revised......................................................69687
87.89 Revised......................................................69687
89 Authority citation revised......................................40444
89.1 (b)(4)(ii) revised; (c) added.................................40444
89.2 Amended.......................................................40444
89.102 (d)(1)(i) revised...........................................40444
89.110 (b)(2) revised..............................................40444
89.112 (f)(3) revised..............................................40444
89.114 (b)(3) revised; (b)(4) added................................40445
89.130 Revised.....................................................40445
89.301 (d) revised.................................................40445
89.319 (b)(2)(ii) and (c) introductory text revised................40445
89.320 (d) revised.................................................40445
89.321 (d) revised.................................................40445
89.322 (b) revised.................................................40445
89.410 (e) added...................................................40445
89.419 (a) introductory text, (3)(i), (b)(1) introductorytext, 
        (2)(i), (v)(B), (4)(ii) and (iii) revised..................40445
89.421 (b) and (c) revised.........................................40446
89.424 (d)(3) note revised.........................................40446
89.501--89.516 (Subpart F) Appendix A amended......................40446
89.603 (e) added...................................................40446
89.611 (b)(1) revised..............................................40446
89.612 (d) revised.................................................40446
89.614 Added.......................................................40447
89.913 Added.......................................................40447
89.914 Added.......................................................40447
89.915 Added.......................................................40447
89.1003 (b)(5) and (6) removed; (b)(7)(iv) redesignated 
        as(b)(7)(vii); (a)(3)(iii), (b)(7)(ii) and (iii) revised; 
        new (b)(7)(iv)and (viii) added.............................40447
89.1006 (a)(1), (2), (5) and (c)(1) revised; (a)(6)added...........40447
89.1009 Added......................................................40448
90 Authority citation revised......................................40448
90.1 (b) and (d)(5) revised; (c) added.............................40448
90.3 Amended.......................................................40448
90.119 (a)(1)(i) revised...........................................40448
90.120 (b)(4) added................................................40448
90.301 (c) and (d) revised.........................................40448
90.308 (b)(1) revised..............................................40448
90.316 (b)(2)(ii) and (c) introductory text revised................40448
90.318 (d) revised.................................................40449
90.320 (b) revised.................................................40449
90.324 (a)(3) and (b) revised......................................40449
90.326 Introductory text, (a) and (e)(4) revised...................40449
90.401 (d) revised.................................................40449
90.405 (d)(10) removed.............................................40449
90.408 (b)(2) revised..............................................40449
90.409 (c)(6) revised..............................................40449
90.417 Revised.....................................................40449
90.418 Revised.....................................................40449
90.419 (e) removed; (b) and (c) amended............................40449
90.421 (b) introductory text and (4)(ii) introductory textrevised 
                                                                   40450
90.426 (e) revised; (f) and (g) removed............................40450
90.612 (b)(1) revised..............................................40450
90.613 (d) revised.................................................40450
90.615 Added.......................................................40450
90.706 (b)(1) amended..............................................40450
90.913 Added.......................................................40450
90.1006 (a)(1). (2), (5) and (c)(1) revised; (a)(6)added...........40450
91 Authority citation revised......................................40451
91.3 Amended.......................................................40451
91.119 (b)(4) added................................................40451
91.207 (a) amended.................................................40451
91.301 (c) revised.................................................40451
91.316 (b)(2)(ii) and (c) introductory text revised; (d)(6)amended
                                                                   40451
91.318 (b)(11) amended; (d) revised................................40451
91.320 (b) revised.................................................40451
91.325 (c)(1)(iv) and (2)(iii) amended; (c)(2)(iv)added............40451
91.419 (b) amended.................................................40452
91.421 (b)(4)(ii) and (iii) revised................................40452
91.705 (d) revised.................................................40452
91.707 Added.......................................................40452
91.1106 (a)(1), (2), (5) and (c)(1) revised; (a)(6)added...........40452
92 Authority citation revised......................................40452
92.1 (a) introductory text, (b)(3) and (4) revised; (d)added.......40452
92.2 (b) amended...................................................40453
92.8 (b) revised...................................................40453
92.12 (g) and (h) added............................................40453
92.104 (b)(1)(i) revised...........................................40453
92.105 (d) revised.................................................40453
92.106 (b)(1)(ii) revised..........................................40453

[[Page 1083]]

92.109 (c)(3) revised..............................................40454
92.114 (a)(2)(ii), (d)(2) introductory text and (e)(1)revised......40454
92.123 (a)(2) revised..............................................40454
92.124 (f) revised.................................................40454
92.126 (b)(3) revised..............................................40454
92.131 (b)(3) revised..............................................40455
92.132 (b)(3)(iii)(D)(2) and (d) revised...........................40455
92.203 (d)(1)(i) revised...........................................40455
92.204 (a) revised.................................................40455
92.205 (a) introductory text revised...............................40455
92.208 (a) and (b) revised.........................................40455
92.210 (b)(1), (2), (d)(2) and (3) revised.........................40455
92.212 (b)(2)(ii), (v)(A), (G), (c)(2)(v)(A) and (D)(2) revised....40456
92.215 (a)(2)(i)(A) and (b) revised................................40456
92.216 (a)(2) removed..............................................40456
92.403 (b) revised.................................................40456
92.508 (e) introductory text revised...............................40456
92.511 (g) introductory text revised...............................40456
92.512 (e) revised.................................................40457
92.806 Added.......................................................40457
92.906 (a) introductory text revised...............................40457
92.907 (a)(3) and (b)(3) revised...................................40457
92.912 Added.......................................................40457
92.1106 (a)(1), (2), (5) and (c)(1) revised; (a)(6)added...........40457
92 Appendix IV amended.............................................40457
93 Technical correction............................................31354
93.102 (b)(2)(ii) and (iii) amended; (b)(2)(iv) and (v)added.......24291
93.105 (e) amended.................................................24291
93.119 (f)(7) and (8) amended; (f)(9) and (10) added...............24291
94 Authority citation revised......................................40457
94.2 (b) amended...................................................40457
94.9 (a)(3) revised................................................40458
94.12 (h) revised..................................................40458
94.105 (b) revised.................................................40458
94.106 (b)(3)(i) revised...........................................40458
94.107 (b) revised.................................................40458
94.109 (b) revised.................................................40458
94.211 (k) revised.................................................40458
94.212 (b)(6) and (7) revised......................................40459
94.806 Added.......................................................40459
94.904 (a) revised; (c) added......................................40459
94.907 Revised.....................................................40459
94.912 Added.......................................................40460
94.913 Added.......................................................40461
94.1004 (b) and (c) introductory text revised......................40461
94.1103 (a)(8) and (b)(4) added; (b)(3) revised....................40461
94.1106 Introductory text, (a)(1), (2), (c) and (d)revised.........40462
96 Authority citation revised......................................25339
96.101--96.108 (Subpart AA) Added; eff.7-11-05.....................25339
96.110--96.114 (Subpart BB) Added; eff.7-11-05.....................25339
96.120--96.124 (Subpart CC) Added; eff.7-11-05.....................25339
96.140--96.143 (Subpart EE) Added; eff.7-11-05.....................25339
96.150--96.157 (Subpart FF) Added; eff.7-11-05.....................25339
96.160--96.162 (Subpart GG) Added; eff.7-11-05.....................25339
96.170--96.176 (Subpart HH) Added; eff.7-11-05.....................25339
96.180--96.188 (Subpart II) Added; eff.7-11-05.....................25339
96.201--96.208 (Subpart AAA) Added; eff.7-11-05....................25362
96.210--96.214 (Subpart BBB) Added; eff.7-11-05....................25362
96.220--96.224 (Subpart CCC) Added; eff.7-11-05....................25362
96.250--96.257 (Subpart FFF) Added; eff.7-11-05....................25362
96.260--96.262 (Subpart GGG) Added; eff.7-11-05....................25362
96.270--96.276 (Subpart HHH) Added; eff.7-11-05....................25362
96.280--96.288 (Subpart III) Added; eff.7-11-05....................25362
96.301--96.308 (Subpart AAAA) Added; eff.7-11-05...................25382
96.310--96.314 (Subpart BBBB) Added; eff.7-11-05...................25382
96.320--96.324 (Subpart CCCC) Added; eff.7-11-05...................25382
96.340--96.342 (Subpart EEEE) Added; eff.7-11-05...................25382
96.350--96.357 (Subpart FFFF) Added; eff.7-11-05...................25382
96.360--96.362 (Subpart GGGG) Added; eff.7-11-05...................25382
96.370--96.376 (Subpart HHHH) Added; eff.7-11-05...................25382
96.380--96.388 (Subpart IIII) Added; eff.7-11-05...................25382

[[Page 1084]]

                                  2006

40 CFR
                                                                   71 FR
                                                                    Page
Chapter I
89.1 (d) added.....................................................39184
89.115 (d)(11) added...............................................39184
89.201 Revised.....................................................39184
93.101 Amended.....................................................12510
93.105 (c)(1)(v) removed; (c)(1)(vi) and (vii) redesignatedas 
        (c)(1)(v) and (vi).........................................12510
93.109 (b) Table 1, (j), (k) and (l)(1) amended; (i)(1) and(2) 
        redesignated as (i)(2) and (3); new (i)(1) added...........12510
93.116 Heading and (a) revised.....................................12510
93.123 Heading, (b) heading, (1)(i), (ii), (iii), (2) and(3) 
        revised; (a)(1) introductory text, (c)(4) and (5) amended; 
        (b)(1)(iv) and (v) added...................................12510
93.125 (a) amended.................................................12510
93.126 Footnote 1 amended..........................................12510
93.127 Amended.....................................................12511
93.152 Amended..............................................17008, 40427
    Regulation at 71 FR 17008 withdrawn............................31093
93.153 (b) revised..........................................17009, 40427
    Regulation at 71 FR 17009 withdrawn............................31093
94.1 (d) added.....................................................39184
94.301 Revised.....................................................39184
96 Actions on petitions............................................25304
    Heading revised................................................25380
96.102 Amended..............................................25380, 74794
96.103 Revised.....................................................25381
96.104 Revised.....................................................25382
96.105 (a)(1), (b)(3) and (7) amended..............................25382
    (a)(1) amended.................................................74794
96.106 (a)(1)(i), (c)(2), (4), (7) and (d)(1) amended; (d)(2) 
        removed; (d)(ii) redesignated as new (d)(2)................25382
96.111 (c) amended.................................................25382
96.112 (c)(1) amended..............................................25382
96.113 (a)(1) and (4)(iv) amended..................................25382
96.115 Added.......................................................25382
    (c) introductory text amended..................................74794
96.120 (a) amended.................................................25383
    Heading revised................................................74794
96.121 (a) and (b) amended.........................................25383
96.123 (b) amended.................................................25383
96.140 Table amended...............................................25302
96.141 (b)(1) and (c)(1) amended; (b)(2) and (c)(2)removed.........25383
96.142 (a)(2)(ii)(C), (c)(1), (2) and (4)(ii) amended; 
        (c)introductory text revised...............................25383
96.143 (a) table amended...........................................25302
    (b)(2), (c)(1), (d), (3), (4) and (5) amended..................25383
    (c) introductory text and (2) introductory text amended........74794
96.151 (b)(2) introductory text, (3)(iii)(A), (B), (4)introductory 
        text, (ii) and (iii) amended; (b)(5) added.................25383
    (b)(2) introductory text and (4) introductory text amended.....74794
96.153 (a), (b) and (d) amended; (c) revised.......................25384
96.154 (a)(1), (2), (c)(2)(ii), (e) and (f)(2) amended; (a)(3) 
        removed....................................................25384
96.155 (b) amended.................................................25384
96.157 (a) and (b) amended.........................................25384
96.170 (b) introductory text, (5), (c)(1) and (d)(3)amended; 
        (c)(2) removed.............................................25384
96.171 (c) amended.................................................25385
96.173 Amended.....................................................25385
96.174 (d)(1)(i), (ii) and (3) amended; (d)(1)(iii) and (iv)added 
                                                                   25385
96.176 Removed.....................................................25385
96.183 (a)(5) revised; (b)(2) amended..............................25385
96.184 (c)(2), (d)(2), (3), (f) and (h)(2) amended.................25385
    (c) introductory text amended..................................74794
96.185 (a)(5) amended; (c) added...................................25385
96.186 (a) and (b)(2) amended......................................25385
96.187 (b)(1), (2)(i), (3)(ii) and (A) amended; (b)(3)(i)revised 
                                                                   25385
    (b)(2)(ii) amended.............................................74794
96.188 Heading revised; (a)(2), (c) and (d)(2)amended..............25385
96.202 Amended..............................................25385, 74794
96.203 Revised.....................................................25387
96.204 Revised.....................................................25387
96.205 (a)(1), (b)(2) and (6) amended..............................25388
96.206 (a)(1)(i), (c)(2) and (7) amended; (d)(1) designationand 
        (2) removed; old (d)(1)(i) and (ii) redesignated as new 
        (d)(1) and(2)..............................................25388
    (c)(4) amended.................................................74794
96.211 (c) amended.................................................25388
96.212 (c)(1) amended..............................................25388
96.213 (a)(1) and (4)(iv) amended..................................25388

[[Page 1085]]

96.215 Added.......................................................25388
    (c) introductory text amended..................................74794
96.220 (a) and (b) amended.........................................25388
96.221 (a) and (b) amended.........................................25388
96.251 (b)(2) introductory text, (3)(iii)(A), (B), (4)introductory 
        text, (ii) and (iii) amended; (b)(5) added.................25388
    (b)(2) introductory text and (4) introductory text amended.....74794
96.254 (a)(1), (2), (b)(1)(ii), (c)(2)(ii), (iv), (vi), (d)(1), 
        (e) and (f)(2) amended; (a)(3) removed.....................25389
    (e) amended....................................................74794
96.255 (b) amended.................................................25389
96.257 (a) and (b) amended.........................................25389
96.261 (a)(1) and (2) amended; (a)(3) added........................25389
96.270 (b) introductory text, (5), (c)(1) and (d)(3)amended; 
        (c)(2) removed; (e) added..................................25389
96.271 (c) removed.................................................25390
    (d)(2) amended.................................................74794
96.273 Amended.....................................................25390
96.274 (d)(1)(i), (ii) and (3) amended; (d)(1)(iii)added...........25390
96.276 Removed.....................................................25390
96.283 (a)(2)(iii), (b)(1) and (2) amended; (a)(5)revised..........25390
96.284 (a), (c)(2), (d)(2), (3), (f) and (h)(2)amended.............25390
    (c) introductory text amended..................................74794
96.285 (a)(5) amended; (c) added...................................25390
96.286 (a) and (b)(2) amended......................................25390
96.287 (b)(1) and (2)(i) amended; (b)(3) removed...................25390
    (b)(2)(ii) amended.............................................74794
96.288 Heading revised; (a)(2), (c) and (d)(2)amended..............25390
96.302 Amended..............................................25390, 74794
96.303 Revised.....................................................25392
96.304 Revised.....................................................25392
    (a)(1) amended.................................................74794
96.305 (a)(1), (b)(3) and (7) amended..............................25293
96.306 (a)(1)(i), (c)(2) and (4) amended; (d)(1) designationand 
        (2) removed; old (d)(1)(ii) redesignated as new (d)(2).....25293
96.311 (c) amended.................................................25293
96.312 (c)(1) amended..............................................25293
96.313 (a)(1) and (4)(iv) amended..................................25293
96.315 Added.......................................................25293
96.320 (a) amended.................................................25394
96.321 (a) and (b) amended.........................................25394
96.341 (b)(1) designation, (2), (c)(1) designation and (2)removed 
                                                                   25394
96.342 (a)(2)(i), (ii)(C), (c)(1), (2) and (4)(ii) amended;(c) 
        introductory text revised..................................25394
    (c)(2) amended.................................................74794
96.351 (b)(2) introductory text, (3)(iii)(A), (B), (4)introductory 
        text, (ii) and (iii) amended; (b)(5) added.................25394
    (b)(2) introductory text and (4) introductory text amended.....74794
96.353 (a), (b) and (d) amended; (c) revised.......................25395
96.354 (a)(1), (2), (c)(2)(ii), (e) and (f)(2) amended; (a)(3) 
        removed....................................................25395
96.355 (b) amended.................................................25395
96.357 (a) and (b) amended.........................................25395
96.370 (b) introductory text, (2)(ii), (3) introductorytext, (7), 
        (c)(1) and (d)(3) amended; (c)(2) removed; (e) added.......25395
96.371 (c) amended.................................................25395
    (d)(2) amended.................................................74794
96.373 Amended.....................................................25395
96.374 (d)(1)(i), (ii) and (2)(ii)(B) amended; (d)(1)(iii),(iv), 
        (2)(ii)(C) and (D) added; second (d)(2) and (3) 
        redesignated as(d)(3) and (4)..............................25395
96.376 Removed.....................................................25396
96.383 (a)(5) revised; (b)(2) amended..............................25396
96.384 (b), (c)(2), (d)(2) and (3) amended.........................25396
    (c) introductory text amended..................................74794
96.385 (a)(5) amended (c) added....................................25396
96.386 (a), (b)(2), (c)(2) and (g) amended.........................25396
96.387 (b)(1), (2)(i), (3)(ii) and (A) amended; (b)(3)(i)revised 
                                                                   25396
    (b)(2)(ii) amended.............................................74794
96.388 Heading revised; (a)(2), (c) and (d)(2)amended..............25396
97 Heading and authority citation revised..........................25396
97.101--97.108 (Subpart AA) Added..................................25396
97.102 Amended.....................................................74795
97.110--97.115 (Subpart BB) Added..................................25396
97.113 (a)(4)(iv) amended..........................................74795
97.120--97.124 (Subpart CC) Added..................................25396

[[Page 1086]]

97.140--97.144 (Subpart EE) Added..................................25396
97.143 (c) introductory text and (2) introductory textamended......74795
97.144 (c)(2) amended..............................................74795
97.150--97.157 (Subpart FF) Added..................................25396
97.160--97.162 (Subpart GG) Added..................................25396
97.170--97.175 (Subpart HH) Added..................................25396
97.180--97.188 (Subpart II) Added..................................25396
97.184 (c) introductory text amended...............................74795
97.187 (b)(2)(ii) amended..........................................74795
97.201--97.208 (Subpart AAA) Added.................................25422
97.202 Amended.....................................................74795
97.210--97.215 (Subpart BBB) Added.................................25422
97.220--97.224 (Subpart CCC) Added.................................25422
97.250--97.257 (Subpart FFF) Added.................................25422
97.260--97.262 (Subpart GGG) Added.................................25422
97.270--97.275 (Subpart HHH) Added.................................25422
97.280--97.288 (Subpart III) Added.................................25422
97.283 (a)(2)(iii) and (iv) amended................................74795
97.284 (c) introductory text, (2) and (d)(2) amended...............74795
97.287 (b)(2)(ii) amended..........................................74795
97.301--97.308 (Subpart AAAA) Added................................25443
97.302 Amended.....................................................74795
97.310--97.315 (Subpart BBBB) Added................................25443
97.320--97.324 (Subpart CCCC) Added................................25443
97.340--97.343 (Subpart EEEE) Added................................25443
97.350--97.357 (Subpart FFFF) Added................................25443
97.360--97.362 (Subpart GGGG) Added................................25443
97.370--97.375 (Subpart HHHH) Added................................25443
97.371 (d)(2) amended..............................................74795
97.380--97.388 (Subpart IIII) Added................................25443
97.384 (c) introductory text amended...............................74795
97.387 (b)(2)(ii) amended..........................................74795

                                  2007

40 CFR
                                                                   72 FR
                                                                    Page
Chapter I
89 Authority citation revised......................................53126
89.1 (b)(2) revised................................................53126
89.2 Amended.......................................................53126
89.101 Revised.....................................................53127
89.102 (d) introductory text, (2)(iii) and (g) revised; (i)through 
        (m) added..................................................53127
    (i) revised; (j) through (m) removed...........................72956
89.108 (d) added...................................................53129
89.115 (g) added...................................................53129
89.205 (a) revised.................................................53129
89.601 (d) added...................................................53129
89.611 (f)(1)(v) and (vi) added....................................53129
94.8 (a)(2)(ii) revised.....................................20952, 68525
    Regulation at 72 FR 20952 withdrawn............................33694
96 Actions on petitions............................................35354
96.102 Amended.....................................................59205
96.202 Amended.....................................................59206
96.302 Amended.....................................................59206
97 Actions on petitions............................................35354
97.102 Amended.....................................................59206
97.140--97.144 (Subpart EE) Appendix A amended.......41459,46394, 52293, 
            55068, 55672, 56920, 57215, 58546, 58552, 59487, 71579,72262
    Regulation at 72 FR 58552 withdrawn............................68515
97.180--97.188 (Subpart II) Appendix A amended.......46394,56920, 57215, 
                                                     58552, 59487, 72262
    Regulation at 72 FR 58552 withdrawn............................68515
97.202 Amended.....................................................59207
97.280--97.288 (Subpart III) Appendix Aamended......46394, 56920, 57215, 
                                                            58552, 59487
    Regulation at 72 FR 58552 withdrawn............................68515
97.302 Amended.....................................................59207
97.301--97.308 (Subpart AAAA) Appendix Aamended....................72262
97.340--97.343 (Subpart EEEE) Appendix Aamended.....46394, 52293, 55068, 
                   55672, 56920, 57215, 58546, 58553,59487, 71579, 72263

[[Page 1087]]

    Appendix A correctly amended...................................55659
    Regulation at 72 FR 58553 withdrawn............................68515
97.380--97.388 (Subpart IIII) Appendix Aamended.....46394, 56920, 57215, 
                                                     58553, 59487, 72263
    Regulation at 72 FR 58553 withdrawn............................68515

                                  2008

   (Regulations published from January 1, 2008, through July 1, 2008)

40 CFR
                                                                   73 FR
                                                                    Page
Chapter I
89.6 (b)(2) and (3) correctly reinstated; CFRcorrection............35591
89.916 Added; eff. 7-7-08...................................25196, 37194
90.1 (h) added......................................................3612
90.107 (d)(12) added................................................3612
90.114 (c)(7) revised; (g) added....................................3613
90.201 Revised......................................................3613
92.1 (a) introductory text revised; (e) added; eff.7-7-08...25196, 37194
92.2 Amended; eff. 7-7-08...................................25196, 37194
92.12 (b) revised; (i) and (j) added; eff.7-7-08............25196, 37194
92.204 (f) added; eff. 7-7-08...............................25196, 37195
92.206 (c) revised; eff. 7-7-08.............................25197, 37195
92.208 (a) revised; eff. 7-7-08.............................25197, 37195
92.212 (b)(2)(iv) revised; eff. 7-7-08.......................25197,37195
92.501 (c) added; eff. 7-7-08...............................25197, 37195
92.1007 Added; eff. 7-7-08..................................25197, 37195
93.101 Amended......................................................4439
93.102 (b)(2)(v) and (4) amended....................................4439
93.104 (b)(2), (3), (c)(3) and (e) introductory textrevised; (f) 
        added.......................................................4439
93.105 (c)(1)(v) and (e) amended....................................4439
93.106 Heading, (a)(1)(iii) and (iv) revised; (d)redesignated as 
        (e); (a)(1)(v) and new (d) added............................4440
93.109 (e)(2) introductory text and (l)(2)(i) revised; (e)(2)(v) 
        removed.....................................................4440
93.114 Introductory text revised....................................4440
93.115 Heading revised; (e) added...................................4440
93.116 (a) amended..................................................4440
93.118 (b) introductory text revised; (d)(2) amended; (d)(3)added 
                                                                    4440
93.119 (f)(10) and (g)(1) amended; (g)(3) added.....................4441
93.120 (a)(2) revised...............................................4441
93.121 (a)(1) and (2) revised.......................................4441
93.123 (a)(3) added; (b)(1)(i) revised..............................4441
93.126 Table 2 amended..............................................4441
94.1 (b) revised; eff. 7-7-08...............................25197, 37196
94.2 Amended; eff. 7-7-08...................................25198, 37196
94.12 (i) added; eff. 7-7-08................................25198, 37196
94.108 (a)(4) added; (d) revised; eff.7-7-08................25198, 37196
94.208 (a) revised; eff. 7-7-08.............................25198, 37196
94.209 (a) introductory text revised; eff.7-7-08............25198, 37196
94.501 (c) added; eff. 7-7-08...............................25198, 37197
94.914 Added; eff. 7-7-08...................................25198, 37197
97.140--97.144 (Subpart EE) Appendix A amended......................6040
97.180--97.188 (Subpart II) Appendix A amended......................6040
97.280--97.288 (Subpart III) Appendix A amended.....................6041
97.340--97.343 (Subpart EEEE) Appendix A amended....................6041
97.380--97.388 (Subpart IIII) Appendix A amended....................6041
    Technical correction............................................8408


                                  [all]